159) The JPML may choose to consolidate cases in a district where no related case is currently pending and that no party suggested.
2225, 2233 (2008) (noting that the JPML transfers thousands of tag-along cases each year).
A party seeking transfer--or a non-party involved in the MDL--must make the JPML aware of the existence of the case, and the JPML clerk will conditionally transfer the case unless a party objects.
165) The JPML "has neither the power nor the inclination to dictate in any way the manner in which the coordinated or consolidated pretrial proceedings are to be conducted by the transferee judge.
Section 1407 empowers the JPML to determine whether a group of cases should be "coordinated or consolidated" for "pretrial proceedings" and where such cases should be transferred.
32) In fact, the JPML has stated in clear terms that "[w]hen determining whether to transfer an action under Section 1407, .
36) While these numbers seem to suggest that the JPML has an overwhelming preference for consolidation, Judge Heyburn, the Panel's chair, argues instead that the high rate of transfer approval is more likely due to the Panel's promulgation and consistent application of clear standards.
45) Thus, these basic limitations on the JPML provide at least some restrictions upon its transfer power, while still allowing a transferee court to efficiently adjudicate litigation.
After the JPML has selected a transferee court and therefore established the MDL, future cases involving the same subject matter, called "tag-along[s]," (160) are filed in federal district courts where venue and personal jurisdiction are appropriate.
176) The Supreme Court unanimously ended that practice, holding that, despite longstanding contrary practice, the plain language of [section] 1407(a) dictates that the JPML "shall" remand cases at the close of pretrial proceedings.
The traditional model for MDL, reflected in its legislative history (184) and the Supreme Court's reading of the MDL statute in Lexecon, (185) provides that pretrial proceedings will at some point conclude, and, on the recommendation of the MDL judge, the JPML will remand the cases to the districts whence they came.
Unlike the general federal transfer statute, which provides that a case may be transferred only to a district court where it "might have been brought or to any district to which all parties have consented," (155) the MDL statute provides no such restriction and the JPML can transfer a case to any district.