II 

109TH CONGRESS 

2D SESSION S. 3734 

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. 

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 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Multidistrict Litigation 

5 Restoration Act of 2005’’. 

6 SEC. 2. FINDINGS AND PURPOSES. 

7 (a) FINDINGS.—Congress finds that— 


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1 (1) under section 1407 of title 28, United 

2 States Code (enacted April 29, 1968), the Judicial 

3 Panel on Multidistrict Litigation (in this section re4 ferred to as the ‘‘Judicial Panel’’), a group of 7 Fed5 eral judges selected by the Chief Justice of the 

6 United States, assists in the centralization of civil 

7 actions which share common questions of fact filed 

8 in more than 1 Federal judicial district nationwide; 

9 (2) civil actions described under paragraph 

10 (1)— 

11 (A) often arise from mass single-action 

12 torts that cause death and destruction in which 

13 the plaintiffs are from many different States; 

14 and 

15 (B) often involve issues of critical impor16 tance to the Nation, including information tech17 nology, intellectual property, antitrust, con18 tracts, and products liability cases; 

19 (3) the Judicial Panel— 

20 (A) identifies the 1 United States district 

21 court (referred to in this section as the ‘‘trans22 feree court’’) best equipped at adjudicating pre23 trial matters; and 

24 (B) after pretrial, remands individual civil 

25 actions back to the district where the civil acVerDate Aug 31 2005 06:18 Aug 02, 2006 Jkt 049200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S3734.IS S3734

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1 tion was originally filed unless that action has 

2 been previously terminated; 

3 (4)(A) for approximately 3 decades, the trans4 feree court often invoked a general venue statute 

5 that authorizes a district court to transfer a civil ac6 tion in the interest of justice and for the convenience 

7 of the parties and witnesses; 

8 (B) in effect, the transferee court simply trans9 ferred all of the civil actions for trial to itself; and 

10 (C) this process worked well because the trans11 feree court was well-versed in the facts and law of 

12 the centralized litigation and the court could assist 

13 all parties to settle when appropriate; 

14 (5) in 1998, the United States Supreme Court 

15 held that the plain language of section 1407 of title 

16 28, United States Code, requires the Judicial Panel 

17 to remand all civil actions for trial back to the re18 spective districts from which such actions were origi19 nally referred; 

20 (6) the absence of authority to transfer a cen21 tralized civil action for trial hampers the Judicial 

22 Panel and transferee judges in their ability to 

23 achieve the important goals of section 1407 of that 

24 title promoting the just and efficient conduct of 

25 multidistrict litigation; 


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1 (7) the Judicial Panel has inherent rulemaking 

2 authority to promulgate procedural rules pertaining 

3 to multidistrict litigation which the Judicial Panel 

4 has already exercised to ensure that when a cen5 tralization occurs all civil actions of a similar nature 

6 then filed and all later civil actions that may be filed 

7 are sent to 1 district court; 

8 (8) Congress has statutorily conferred the Judi9 cial Panel with rulemaking authority for the conduct 

10 of its business not inconsistent with the United 

11 States Constitution, Acts of Congress, and the Fed12 eral Rules of Civil Procedure; and 

13 (9) in civil actions in which punitive damages 

14 are to be imposed, individual courts, including trans15 feree courts, must ensure that the measure of pun16 ishment is both reasonable and proportionate to the 

17 amount of harm to plaintiffs and to the amount of 

18 compensatory damages received. 

19 (b) PURPOSE.—The purpose of this Act is to improve 

20 the litigation system in the Nation to allow a Federal 

21 judge to whom a civil action is transferred under section 

22 1407 of title 28, United States Code, to retain jurisdiction 

23 over certain civil actions for trial to determine liability and 

24 compensatory and punitive damages, if appropriate, in 

25 compliance with due process requirements. 


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1 SEC. 3. MULTIDISTRICT LITIGATION. 

2 Section 1407 of title 28, United States Code, is 

3 amended— 

4 (1) in the third sentence of subsection (a), by 

5 inserting ‘‘or ordered transferred to the transferee 

6 or other district under subsection (i)’’ after ‘‘termi7 nated’’; and 

8 (2) by adding at the end the following: 

9 ‘‘(i)(1) Subject to paragraph (2) and except as pro10 vided in subsection (j), any action transferred under this 

11 section by the panel may be transferred for trial purposes, 

12 by the judge or judges of the transferee district to whom 

13 the action was assigned, to the transferee or other district 

14 in the interest of justice and for the convenience of the 

15 parties and witnesses. 

16 ‘‘(2) Any action transferred for trial purposes under 

17 paragraph (1) shall be remanded by the panel for the de18 termination of compensatory damages to the district court 

19 from which it was transferred, unless the court to which 

20 the action has been transferred for trial purposes also 

21 finds, for the convenience of the parties and witnesses and 

22 in the interests of justice, that the action should be re23 tained for the determination of compensatory damages.’’. 


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1 SEC. 4. TECHNICAL AMENDMENT TO MULTIPARTY, MULTI2 FORM TRIAL JURISDICTION ACT OF 2002. 

3 Section 1407 of title 28, United States Code, as 

4 amended by section 3 of this Act, is further amended by 

5 adding at the end the following: 

6 ‘‘(j)(1) In actions transferred under this section when 

7 jurisdiction is or could have been based, in whole or in 

8 part, on section 1369 of this title, the transferee district 

9 court may, notwithstanding any other provision of this 

10 section, retain actions so transferred for the determination 

11 of liability and punitive damages. An action retained for 

12 the determination of liability shall be remanded to the dis13 trict court from which the action was transferred, or to 

14 the State court from which the action was removed, for 

15 the determination of damages, other than punitive dam16 ages, unless the court finds, for the convenience of parties 

17 and witnesses and in the interest of justice, that the action 

18 should be retained for the determination of damages. 

19 ‘‘(2) Any remand under paragraph (1) shall not be 

20 effective until 60 days after the transferee court has 

21 issued an order determining liability and has certified its 

22 intention to remand some or all of the transferred actions 

23 for the determination of damages. An appeal with respect 

24 to the liability determination and the choice of law deter25 mination of the transferee court may be taken during that 

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1 diction over the transferee court. In the event a party files 

2 such an appeal, the remand shall not be effective until the 

3 appeal has been finally disposed of. Once the remand has 

4 become effective, the liability determination and the choice 

5 of law determination shall not be subject to further review 

6 by appeal or otherwise. 

7 ‘‘(3) An appeal with respect to determination of puni8 tive damages by the transferee court may be taken, during 

9 the 60-day period beginning on the date the order making 

10 the determination is issued, to the court of appeals with 

11 jurisdiction over the transferee court. 

12 ‘‘(4) Any decision under this subsection concerning 

13 remand for the determination of damages, other than pu14 nitive damages, shall not be reviewable by appeal or other15 wise. 

16 ‘‘(5) Nothing in this subsection shall restrict the au17 thority of the transferee court to transfer or dismiss an 

18 action on the ground of inconvenient forum.’’. 

19 SEC. 5. EFFECTIVE DATE. 

20 (a) MULTIDISTRICT LITIGATION.—The amendments 

21 made by section 3 shall apply to any civil action pending 

22 on or brought on or after the date of the enactment of 

23 this Act. 

24 (b) TECHNICAL AMENDMENT.—The amendment 

25 made by section 4 shall be effective as if enacted in section 


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1 11020(b) of the Multiparty, Multiforum Trial Jurisdiction 

2 Act of 2002 (Public Law 107–273; 116 Stat. 1826 et 

3 seq.). 

Æ 


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