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  • Kirk Hartley

Banks as MDL Defendants – The Countrywide Example

Multidistrict litigation panels manage mass claims. The legal community is used to seeing MDLs involving product liability claims related to drugs, implants, and toxins. But MDL proceedings are in fact underway as to financial institutions. An example is In re: Countrywide Financial Corp. Mortgage-Backed Securities Litigation, No. 2265. A new order of August 15, 2011 coordinates many but not all of the cases against Countrywide with respect to sales of mortgage-backed securities. The MDL does not include other types of claims, such as claims of fraud in selling shares of the bank’s stock.

An initial, primary consequence of MDL proceedings usually is coordinated or consolidated discovery. For both sides, the streamlining of discovery saves money and effort. For example, employees of the defendant(s) are deposed once or twice, and the testimony is designated as useable in all cases. Similarly, images of documents to be produced by the parties are usually deposited into an online depository accessible to many.

Consolidated discovery raises the stakes for defendants because a few sentences of testimony can be a game changer for multiple cases. The game also can be changed by one or a few "bad" documents. Defendants also face more risks that the plaintiff’s lawyers share investigation efforts and think creatively together.

For plaintiffs, an MDL takes away some individual lawyer or law firm control of how a case is conducted for discovery, and oftentimes, for settlement. The loss of control may be favorable or unfavorable. For a weak claim, joining an MDL can be helpful because the weight of all the cases may lead to discovery that improves a weak claim by revealing more examples of tortious conduct by a defendant. For settlement, MDL proceedings may produce a settlement that pays everyone at a blended rate instead of a premium payment to strong claims and a lesser payment (or no payment) to weak claims.

For all sides, an MDL often leads to greater media focus, as exemplified by this NLJ story on Countrywide. Reporters with low budgets and tight schedules find it difficult to track many cases, dates, pleadings and hearings. MDL’s reduce the burden of following proceedings, and hearings bring together lead lawyers often willing to offer insights into their positions as the parties jockey for control of the media spin and the resulting consequences for perception of the merits of the claims. Messaging can become more important than reality. And, stock analysts follow media.

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About Kirk

Since becoming a lawyer in 1983, Kirk’s over 30 years of practice have focused on advising a wide range of corporations, associations, and individuals (as both plaintiffs and defendants) on both tort and commercial law issues centered around “mass torts.”

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