In any large MDL, the architecture of plaintiffs' leadership—who sits on the PSC, how they got there, and how they are compensated—shapes the entire arc of the litigation, from discovery to settlement to fee allocation.
Doctrinal Framing
Multidistrict litigation is the dominant forum for mass-tort, pharmaceutical, product liability, and antitrust cases in the federal system. By statute, when civil actions involving common questions of fact are pending in different districts, the Judicial Panel on Multidistrict Litigation may transfer them to a single district "for coordinated or consolidated pretrial proceedings." 28 U.S.C. § 1407(a). Once transferred, the transferee court—acting through appointed plaintiffs' and defendants' leadership—manages pretrial proceedings for potentially thousands of individual cases, each of which must ultimately be either resolved by settlement, remanded for trial, or transferred under 28 U.S.C. § 1404 after pretrial proceedings conclude.
The plaintiffs' steering committee is the engine of MDL litigation on the plaintiffs' side. How it is constituted and governed determines the quality of discovery, the strategy for bellwether trials, and the integrity of any eventual global settlement. Counsel aspiring to leadership positions—or evaluating whether to transfer cases into an MDL—must understand the mechanics.
The JPML and Transferee Court Roles
The Judicial Panel on Multidistrict Litigation consists of seven circuit and district judges designated by the Chief Justice. The Panel evaluates petitions for consolidation, holds hearings, and enters transfer orders under § 1407(a). The Panel selects the transferee district based on factors including the location of evidence and witnesses, the experience of the proposed transferee judge, and the court's available docket capacity. The Panel's selection of the transferee judge is effectively final; there is no appeal from a transfer order.
The transferee judge exercises plenary authority over pretrial proceedings in all transferred cases. This authority is broad: the transferee court can issue consolidated discovery orders, appoint and remove plaintiffs' leadership, establish case management schedules, conduct pretrial hearings, and rule on dispositive motions in individual cases. What the transferee court cannot do—absent the parties' consent—is conduct the trial itself. Under Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998), the Panel must remand transferred cases "at or before the conclusion of . . . pretrial proceedings" to the originating district. The transferee court has no authority to use 28 U.S.C. § 1404(a) to self-assign cases for trial. Lexecon is a constitutional guardrail that shapes how MDL judges manage global settlements: if cases are not settled, they must eventually go home for trial.
PSC Selection: Process and Standards
The transferee court appoints plaintiffs' leadership—typically a plaintiffs' steering committee, a liaison counsel, and sometimes a lead or co-lead counsel—early in the MDL's life, usually at or shortly after the initial case management conference. The selection process varies by judge and district, but three models predominate:
1. Application process. The judge circulates an order inviting counsel to apply for leadership positions. Applications typically address the firm's MDL experience, the resources it can commit (staff, expert funding, travel), its current MDL docket to avoid overcommitment, and any conflicts of interest. Some judges interview finalists; others decide on papers.
2. Negotiated structure. In some MDLs, the plaintiffs' bar self-organizes and presents the court with a proposed leadership structure, often after informal caucuses among the largest filers. The court may accept the proposed structure or modify it.
3. Court appointment without process. In smaller MDLs, judges sometimes appoint leadership based on judicial experience with particular firms, particularly in districts with concentrated MDL dockets (N.D. Cal., D.N.J., S.D.N.Y., W.D. Wash.).
The Manual for Complex Litigation (Fourth) sets forth criteria courts routinely apply: professional experience in complex federal litigation, willingness and ability to commit resources, ability to work cooperatively with co-counsel and defense, and absence of conflicts with the putative class or claimants. Courts have also increasingly required leadership applicants to disclose potential fee-sharing arrangements with non-leadership firms.
PSC Composition and Governance
A typical PSC includes five to fifteen law firms, with a lead or co-lead counsel position at the apex. Governance documents—usually a formal PSC order entered by the court—specify:
- Decision-making authority: whether PSC decisions require majority vote, supermajority, or consensus; whether lead counsel has unilateral authority to accept or reject settlement offers.
- Work allocation: assignment of specific discovery, motions, and expert development responsibilities to member firms.
- Reporting obligations: regular status conferences with the court, minutes or summaries of PSC meetings, and transparency with the broader plaintiffs' bar on MDL developments.
- Conflicts management: procedures for addressing situations where PSC members may have divergent interests (e.g., some members representing clients with strong cases, others with weaker ones).
Common Benefit Fund Mechanics
Because MDL work benefits all plaintiffs—not just the clients of PSC members—the transferee court typically establishes a common benefit fund (CBF) to compensate leadership counsel for their common-benefit work.
The mechanics are straightforward but the stakes are high:
Assessment. The court orders an assessment—typically 4% to 8% of gross settlement proceeds—withheld from every individual plaintiff's recovery, regardless of whether that plaintiff's counsel did any common-benefit work. The percentage is established by court order, sometimes after briefing, and takes effect prospectively.
Time and expense records. PSC members are required to maintain contemporaneous billing records in Lodestar format and to submit expenses with documentation. Most MDL courts appoint a special master or fee committee to audit submissions before any distribution.
Distribution. After global or near-global resolution, the fee committee proposes a distribution to the court, which evaluates it for reasonableness under the common-benefit doctrine. Non-leadership counsel who contributed substantially to the litigation (e.g., by developing critical expert testimony or winning a key motion) may petition for common-benefit compensation.
Lodestar vs. percentage. Courts vary in their preferred method for setting common-benefit fees: some apply a lodestar cross-check; others use percentage-of-fund methodology. The Supreme Court's framework from Hensley v. Eckerhart, 461 U.S. 424 (1983), and its progeny informs the analysis, though MDL common-benefit determinations are not governed by the same criteria as fee-shifting statutes.
The tension with contingency counsel. Lawyers who recruited clients into the MDL through direct contract—and who expect a contingency fee from their clients' individual recoveries—resist assessment rates they view as excessive. This tension surfaced prominently in the Vioxx, Deepwater Horizon, and 3M Combat Arms MDLs. Some courts have permitted non-participating counsel to challenge the assessment rate if they contributed no common-benefit work.
Recent MDL Governance Reforms
The Federal Judicial Center and the Judicial Conference's MDL Rules Subcommittee have focused attention on governance reforms in the wake of large, controversial MDLs. Key developments include:
Plaintiff Fact Sheets and Plaintiff Profile Forms. Transferee courts routinely require each plaintiff to submit a standardized Plaintiff Fact Sheet (PFS) at the outset—disclosure of the claimed injury, product use history, and medical records. Failure to complete the PFS triggers dismissal for want of prosecution in many MDLs. This is a form of early screening.
Census orders. Following the 3M Combat Arms MDL (M.D. Fla.) and other megalitigations, some transferee judges have begun entering "census orders" requiring counsel to register all prospective clients, whether or not their cases have been filed. Census orders help the court size the litigation and identify law firms with mass registrations of unvetted claims.
Fee transparency. Several transferee judges have required disclosure of fee-sharing agreements with referring counsel before leadership is appointed. This responds to concerns about MDL leadership serving as a feeder system for referral networks rather than as genuine advocates.
FJC model orders. The Federal Judicial Center has published model case management orders and a checklist for MDL leadership selection that emphasize geographic diversity, firm-size diversity, and inclusion of less-experienced plaintiffs' firms as a matter of fairness and efficiency.
Practice Notes
For counsel seeking PSC membership. File a complete, tailored application that addresses the specific MDL's factual and legal landscape. Courts discard boilerplate. Identify a specific work assignment you are equipped to own—specific discovery subject matter, a particular causation expert area, or bellwether trial management.
For counsel deciding whether to transfer cases. Before filing in the transferee district or awaiting transfer by the Panel, evaluate the PSC's track record, the assessment rate, and the likely timeline. Cases that are procedurally advanced in state court may be worth keeping out of the MDL through the "tag-along" waiver process or by strategic venue selection.
For defendants. MDL defense strategy increasingly focuses on challenging the PSC's common-benefit work product as insufficiently rigorous to support the assessment rate, and on pressing for Plaintiff Fact Sheets with teeth—dismissal consequences for deficient submissions.
Closing
The PSC structure is not merely an administrative convenience. It is the governance architecture through which billions of dollars in mass-tort claims are resolved. Counsel who understand how PSCs are selected, how common-benefit funds work, and how transferee courts exercise their broad authority are positioned to serve their clients—and the litigation—far more effectively than those who treat MDL leadership as a political prize rather than a professional obligation.
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Informational only. Not legal advice. No attorney-client relationship is created by reading this post. Consult a licensed attorney in your jurisdiction.