For the first time, white men made up less than half of all judges appointed by a federal judicial panel to lead multidistrict litigation in 2018, and a Miami case is proof of that.
The U.S. Judicial Panel on Multidistrict Litigation, which appoints judges to oversee MDLs, transferred coordinated proceedings last year to 28 judges, including 11 white males. Historically, white men have made up the majority of MDL transferee judges, but in 2017 their representation dropped to 52 percent. Minority judges, meanwhile, reached a record number.
U.S. District Judge Darrin Gayles of the Southern District of Florida is supervising class actions blaming Monat hair care products for hair loss and scalp irritation.
Although most of the judges selected for cases previously handled an MDL, 10 were new to the job. Those included Gayles and U.S. District Judge Manish Shah of the Northern District of Illinois, both African-Americans appointed by President Barack Obama in 2014.
Multidistrict litigation is a significant part of the federal court system, making up a combined 484,000 cases as of Dec. 17, according to the MDL panel. MDL panel selection hinges on various reasons, such as whether a judge is already handling a case that could be part of a multidistrict litigation or whether defendants are based in their district. But the shift in diversity comes as the MDL panel has broadened its pool of transferee judges in the past few years to include more women and minority judges.
“The Judicial Panel is sending a powerful message to the bar and public that the administration of justice in MDL cases can be best served by judges who represent the diversity of our society and legal system,” said John Rabiej, director of the Duke University School of Law’s Bolch Judicial Institute, which has issued guidance to diversify the MDL bench.
Women appointed to their first MDLs included U.S. District Judge Rebecca Beach Smith of the Eastern District of Virginia, U.S. District Judge Virginia Kendall of the Northern District of Illinois and Eastern District of Kentucky Chief Judge Karen Caldwell.
Even among those who have handled an MDL before, 11 were women or minority judges — some handling the largest cases last year.
For example, the panel appointed Northern District of California Judge Vince Chhabria, of South Asian descent, on June 6 to handle dozens of class actions brought over the Cambridge Analytica scandal involving Facebook. Chhabria, an Obama appointee from 2014, got his first MDL appointment two years ago to handle the Roundup pesticide litigation against Monsanto Co. On April 4, the panel chose U.S. District Judge Philip Gutierrez, who has handled several MDLs in the Central District of California, to oversee the data breach litigation against Uber.
Some lawyers advocating for a particular judge, meanwhile, referenced diversity in their briefs. In the Monat case assigned to Gayles, Andersen Sleater Sianni attorney Jessica Sleater remarked, in arguing for U.S. District Judge Marcia Cooke in Miami, a 2003 appointee of President George W. Bush, that she was the first black woman to be a federal judge in Florida and had not handled an MDL before. On June 6, the MDL panel chose Gayles instead.
In an interview, Sleater said both judges show “great progress” in diversifying the bench and the 2018 statistics demonstrate what the MDL panel is looking for.
“One of the things that’s more important in our MDLs/class action world is diversity because we’re talking about a broad swath of people, consumers, who were impacted by using the defendants’ products,” she said. “So you’re not just talking about one party, one plaintiff, that’s a certain sex or race or whatever. You’re talking about a huge amount of people in the population. It’s great to have different judges from different backgrounds considering class actions.”
Those arguments haven’t always worked. Kansas City attorney Kenneth Kinney tried to make the case for female MDL judges in his brief supporting Beth Phillips, chief judge of the Western District of Missouri, for a 122-case MDL brought over polypropylene hernia mesh products made by Davol Inc. and C.R. Bard Inc. Many other lawyers supported Phillips, but their top preference was U.S. District Chief Judge Edmund Sargus of the Southern District of Ohio, a 1996 appointee of President Bill Clinton. Sargus, who handled an MDL against DuPont over the chemical used to make Teflon and other household items, got the job.
In his brief, Kinney cited 2017 statistics from the federal judiciary noting 34 percent of all federal judges were female. He wrote that “a smaller percentage” were handling MDLs.
The case “provides an opportunity for the panel to appoint a female judge as the transferee judge, not because she is a woman, but because she is qualified to do so,” he wrote in support of Phillips. “Although she lacks experience presiding over an MDL, that fact could be a benefit. As multidistrict litigation becomes more common, it should be beneficial to have a fresh perspective on how to promote fairness and efficiency therein.”