II 109th CONGRESS 2d Session S. 3734 IN THE SENATE OF THE UNITED STATES July 26, 2006 Mr. Hatch (for himself and Mr. Sessions) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To amend title 28, United States Code, to allow a judge to whom a case is transferred to retain jurisdiction over certain multidistrict litigation cases for trial, and for other purposes.

1.

Short title

This Act may be cited as the Multidistrict Litigation Restoration Act of 2005.

2.

Findings and purposes

(a)

Findings

Congress finds that— (1)under section 1407 of title 28, United States Code (enacted April 29, 1968), the Judicial Panel on Multidistrict Litigation (in this section referred to as the Judicial Panel), a group of 7 Federal judges selected by the Chief Justice of the United States, assists in the centralization of civil actions which share common questions of fact filed in more than 1 Federal judicial district nationwide; (2)civil actions described under paragraph (1)— (A)often arise from mass single-action torts that cause death and destruction in which the plaintiffs are from many different States; and (B)often involve issues of critical importance to the Nation, including information technology, intellectual property, antitrust, contracts, and products liability cases; (3)the Judicial Panel— (A)identifies the 1 United States district court (referred to in this section as the transferee court) best equipped at adjudicating pretrial matters; and (B)after pretrial, remands individual civil actions back to the district where the civil action was originally filed unless that action has been previously terminated; (4)(A)for approximately 3 decades, the transferee court often invoked a general venue statute that authorizes a district court to transfer a civil action in the interest of justice and for the convenience of the parties and witnesses; (B)in effect, the transferee court simply transferred all of the civil actions for trial to itself; and (C)this process worked well because the transferee court was well-versed in the facts and law of the centralized litigation and the court could assist all parties to settle when appropriate; (5)in 1998, the United States Supreme Court held that the plain language of section 1407 of title 28, United States Code, requires the Judicial Panel to remand all civil actions for trial back to the respective districts from which such actions were originally referred; (6)the absence of authority to transfer a centralized civil action for trial hampers the Judicial Panel and transferee judges in their ability to achieve the important goals of section 1407 of that title promoting the just and efficient conduct of multidistrict litigation; (7)the Judicial Panel has inherent rulemaking authority to promulgate procedural rules pertaining to multidistrict litigation which the Judicial Panel has already exercised to ensure that when a centralization occurs all civil actions of a similar nature then filed and all later civil actions that may be filed are sent to 1 district court; (8)Congress has statutorily conferred the Judicial Panel with rulemaking authority for the conduct of its business not inconsistent with the United States Constitution, Acts of Congress, and the Federal Rules of Civil Procedure; and (9)in civil actions in which punitive damages are to be imposed, individual courts, including transferee courts, must ensure that the measure of punishment is both reasonable and proportionate to the amount of harm to plaintiffs and to the amount of compensatory damages received. (b)

Purpose

The purpose of this Act is to improve the litigation system in the Nation to allow a Federal judge to whom a civil action is transferred under section 1407 of title 28, United States Code, to retain jurisdiction over certain civil actions for trial to determine liability and compensatory and punitive damages, if appropriate, in compliance with due process requirements.

3.

Multidistrict litigation

Section 1407 of title 28, United States Code, is amended— (1)in the third sentence of subsection (a), by inserting or ordered transferred to the transferee or other district under subsection (i) after terminated; and (2)by adding at the end the following: (i)(1)Subject to paragraph (2) and except as provided in subsection (j), any action transferred under this section by the panel may be transferred for trial purposes, by the judge or judges of the transferee district to whom the action was assigned, to the transferee or other district in the interest of justice and for the convenience of the parties and witnesses. (2)Any action transferred for trial purposes under paragraph (1) shall be remanded by the panel for the determination of compensatory damages to the district court from which it was transferred, unless the court to which the action has been transferred for trial purposes also finds, for the convenience of the parties and witnesses and in the interests of justice, that the action should be retained for the determination of compensatory damages. .

4.

Technical amendment to multiparty, multiform trial jurisdiction act of 2002

Section 1407 of title 28, United States Code, as amended by section 3 of this Act, is further amended by adding at the end the following: (j)(1)In actions transferred under this section when jurisdiction is or could have been based, in whole or in part, on section 1369 of this title, the transferee district court may, notwithstanding any other provision of this section, retain actions so transferred for the determination of liability and punitive damages. An action retained for the determination of liability shall be remanded to the district court from which the action was transferred, or to the State court from which the action was removed, for the determination of damages, other than punitive damages, unless the court finds, for the convenience of parties and witnesses and in the interest of justice, that the action should be retained for the determination of damages. (2)Any remand under paragraph (1) shall not be effective until 60 days after the transferee court has issued an order determining liability and has certified its intention to remand some or all of the transferred actions for the determination of damages. An appeal with respect to the liability determination and the choice of law determination of the transferee court may be taken during that 60-day period to the court of appeals with appellate jurisdiction over the transferee court. In the event a party files such an appeal, the remand shall not be effective until the appeal has been finally disposed of. Once the remand has become effective, the liability determination and the choice of law determination shall not be subject to further review by appeal or otherwise. (3)An appeal with respect to determination of punitive damages by the transferee court may be taken, during the 60-day period beginning on the date the order making the determination is issued, to the court of appeals with jurisdiction over the transferee court. (4)Any decision under this subsection concerning remand for the determination of damages, other than punitive damages, shall not be reviewable by appeal or otherwise. (5)Nothing in this subsection shall restrict the authority of the transferee court to transfer or dismiss an action on the ground of inconvenient forum. .

5.

Effective date

(a)

Multidistrict litigation

The amendments made by section 3 shall apply to any civil action pending on or brought on or after the date of the enactment of this Act. (b)

Technical amendment

The amendment made by section 4 shall be effective as if enacted in section 11020(b) of the Multiparty, Multiforum Trial Jurisdiction Act of 2002 (Public Law 107–273; 116 Stat. 1826 et seq.).