Collusion - Judicial Discretion vs.

Judicial Deception: The Impending Meltdown of the

United States Federal Judicial System
(2018) By Brian J. Donovan ‘75

The U.S. Judicial Panel on Multidistrict Litigation (“JPML”) was created by an Act of Congress
in 1968 (28 U.S.C. §1407). The job of the JPML, as set forth in the multidistrict litigation
(“MDL”) statute, is to determine whether civil actions pending in different federal districts
involve one or more common questions of fact such that the actions should be transferred to one
federal district for coordinated or consolidated pretrial proceedings. The purpose of this
“centralization” process is to avoid duplication of discovery, to prevent inconsistent pretrial
rulings, and to conserve the resources of the parties, their counsel and the judiciary.
Theoretically, transferred actions are remanded to their originating transferor districts by the
JPML at or before the conclusion of centralized pretrial proceedings.

Since its creation in 1968, the JPML has centralized 553,249 civil actions for pretrial
proceedings. By the end of 2015, a total of 15,844 actions had been remanded for trial. In short,
the JPML remanded only 2.86% of cases to their original districts.

Few judges and attorneys are aware of the number of cases in MDLs. As of September 30, 2015,
there were a total of 341,813 civil cases pending in federal court of which 132,788 cases were
pending in MDLs. In other words, 38.9% of the civil cases pending in the nation’s federal courts
were consolidated in MDLs. As of September 2017, more than 40% of the civil cases pending in
the nation’s federal courts were consolidated in MDLs. That percentage will only continue to
increase.

This book, which represents the first effort to view MDL from a legal practitioner’s perspective,
is the product of the last seven years of legal representation that Donovan devoted to victims of
MDL. Donovan examines how the collusive nature of MDL has devolved to the point where:
(a) justice is replaced by judicial efficiency, (b) federal judges sanction fund approaches and
settlement class actions which limit the liability of defendants, and (c) a relatively small group of
elite and self-interested “cooperative” attorneys are permitted to be grossly over-compensated for
merely acting as dealmakers. One of the most egregious examples of blatant collusion in MDL
involves the well-known BP oil well blowout in the Gulf of Mexico on April 20, 2010. Donovan
uses this on-going judicial disaster as a case study.

The precedent established by the BP oil well blowout MDL ensures that the offshore oil and gas
industry will never be held strictly liable for damages resulting from an oil well blowout in the
Gulf of Mexico. Based on little more than empty air, a transferee judge and his cooperative band
of Plaintiffs’ Steering Committee attorneys have decided that an offshore oil well blowout incident
is governed by admiralty law rather than the Oil Pollution Act of 1990.

Brian J. Donovan, ‘75 is the founder of Donovan Law Group, PLLC and the co-founder of
ChinAmerica Legal Advisors, PLLC. Donovan, a graduate of the U.S. Merchant Marine
Academy and Syracuse University College of Law, has over forty years of international legal
experience. His practice focuses on international business development and complex business
litigation. Donovan is considered to be a leading authority on multidistrict litigation.
COLLUSION is available in bookstores and online.
https://www.barnesandnoble.com/w/1127702938