Request for a Congressional Investigation of Multidistrict Litigation

An Open Letter to Senator Sheldon Whitehouse

The following open letter is the third letter I have written to Senator Sheldon Whitehouse since March 23, 2021 wherein I request a congressional investigation of multidistrict litigation (“MDL”).

Senator Whitehouse ignored my first two requests.

Whitehouse’s refusal to address this matter is not surprising for two reasons: (a) typically, the defendants in MDL are corporate mega donors to both the democratic and republican parties; and (b) many of the MDL transferee judges are federal judges appointed by Democratic presidents.

Over the past couple of years, I have come to realize that Whitehouse primarily focuses on holding accountable, either justifiably or not, federal judges who were nominated by Republican presidents. In sum, Senator Whitehouse prefers to self-servingly politicize judicial corruption.

                                                                                                                        April 18, 2023

The Honorable Sheldon Whitehouse

United States Senate

Hart Senate Office Bldg., Rm. 530

Washington, DC 20510

            Re: Request for a Congressional Investigation of Multidistrict Litigation

Dear Senator Whitehouse:

Although I am not a constituent of yours, I believe the matter I raise below, either directly or indirectly, affects your constituents and the constituents of every member of Congress.

I write to bring to your attention the fact that multidistrict litigation (“MDL”) has been allowed to devolve into merely a protection racket for corporations; and to ask that you facilitate a congressional investigation of this matter.

The federal judicial protection racket is composed of the judicial panel on multidistrict litigation (“JPML”) and the individual MDL judges. Having represented MDL victims since 2010, I am keenly aware that this protection racket focuses on limiting the liability of the corporate defendant(s) in MDL. Justice for the MDL plaintiffs is never a consideration. Each MDL judge focuses on running the protection racket for the defendant corporation(s) and maximizing judicial efficiency in his specific MDL. 

The JPML was created in 1968 when Congress enacted the MDL statute (28 U.S.C. § 1407). See Donovan v. Barbier, et al. complaint, Case 8:20-cv-02598, Paragraphs 19 through 28 for an overview of the MDL statute.

A basic understanding of the incestuous hierarchy of MDL is helpful.

(a) The Chief Justice of the United States appoints the members to the JPML;

(b) The JPML selects the MDL court and appoints the MDL judge; and

(c) The MDL judge selects, appoints and compensates the cooperative, dealmaking lead counsel and settlement fund administrator(s).

While the media focuses on the executive and legislative branches, the judicial branch poses the greatest danger to American democracy due to the unprecedented explosion in MDL. Due to the rapid expansion of the federal judicial protection racket, millions of mass tort victims are no longer able to assert their legal rights because they are being denied access to the courts.

Since the creation of the JPML in 1968, there have been 1,056,706 civil actions centralized for pretrial proceedings. As of September 30, 2021, a total of 17,357 actions had been remanded for trial and 647,396 actions had been terminated in the transferee court. At the end of this statistical year, there were 391,953 actions pending in 184 MDLs in 45 transferee district courts. New data from the JPML and the United States Courts, analyzed by Lawyers for Civil Justice (LCJ), shows that over 70% of the federal civil caseload (391,953 cases out of 559,653 federal civil cases) resides in MDLs as of the end of fiscal year 2021 (FY21). Over the past decade, there has been a rapid rise in the percentage of the civil caseload in MDLs, an increase in concentration of 142% since FY12.

Theoretically, the general purpose behind MDL is to serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. In cases where common allegations are pending in different federal districts, actions may be transferred to a single district court for coordinating or consolidating pretrial proceedings and then remanded to their original jurisdictions for trial.

Notwithstanding the clarity of purpose set forth in the MDL statute, MDL is really a dispositive, not pretrial, action. Forced settlement, which results in the plaintiffs receiving little or no compensation for their damages, or dismissal with prejudice, not remand, is the endgame. Few MDL cases are sent back to the district courts in which they were originally filed. Less than 3% of cases are remanded following transfer to an MDL. For more than 97% of transferred cases, MDL is a permanent “Black Hole.”

The conduct of the JPML, the individual MDL judges, and the MDL lead counsel offends a public sense of justice and propriety. The potential harm to the public’s perception of the judicial process is especially acute in MDL because of the large number of plaintiffs.

For a better understanding of this issue, please read the article titled “Mob Bosses in Black Robes: A Panel of Seven Federal Judges Appointed by the Chief Justice of the United States Runs a Protection Racket for Big Business” which I posted on our website.

I believe this matter falls well within the proper bounds for a congressional investigation given the investigation would be pursuant to “a valid legislative purpose” in that it would ensure future judicial compliance with the legislative intent of 28 U.S.C. § 1407.

Your consideration of my request is greatly appreciated.

Sincerely,

Brian J. Donovan