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E. Barrett Prettyman courthouse in Washington, D.C. March 22, 2018. Photo: Diego M. Radzinschi/ALM

Recent trends in how federal district courts exercise their power of judicial review underscore the changing nature of regulatory litigation. These trends start with the rise in multidistrict litigation, as groups of plaintiffs file complaints in multiple district courts to maximize their chances of blocking a federal policy. For their part, courts considering these challenges are exercising their power by refusing to defer to the executive branch and authorizing discovery. Individuals and businesses impacted by federal regulation should take these trends into consideration as they devise litigation strategies. (In the second installment of this two-part series, we will discuss two additional trends—the rigorous enforcement of the Administrative Procedure Act’s standard of review and the rise of nationwide injunctions.)

Multidistrict litigation is booming.

The days when only a single judge would review a federal policy seem to be over with the explosion of multidistrict litigation.

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