the rule is not, strictly speaking, retroactive. All four Complaints were filed in their respective jurisdictions after November 8, 1990: Research Triangle on January 3, 1991; Clovine/Ellingson on March 14, 1991, Clovine/Standefer on April 9, 1991; and 600 Grant Street/Reagan on April 12, 1991. If the Plaintiffs could avoid the application of Second Circuit law merely by filing their claim in an inconvenient forum which had a longer statute of limitations, and then take that statute of limitations with them when their case was transferred, they could make an end run around the rule laid down by Ceres. Although this is now impossible for all claims filed after June 19, 1991, due to the Supreme Court's decision in Lampf, the eight-month lag between Ceres and Lampf creates an apparent window of opportunity which the Plaintiffs should not be allowed to exploit.
Finally, the first prong of the Chevron test -- that the rule changes the practice in this Circuit -- is met for cases filed here, and for cases transferred here but not transferred as part of MDL litigation. The precedents for MDL cases are not as clear-cut as for cases filed under other statutes, because the special concerns inherent in MDL litigation have been reflected in the case law.
3. Multidistrict Litigation
The multidistrict transfer statute, 28 U.S.C. § 1407, attempts to provide for the "just and efficient conduct" of related cases scattered throughout the federal courts by consolidating such cases before one court. See 18 U.S.C. § 1407(a). One of the key means by which this goal is achieved is through the establishment of a single body of law for the unified proceedings. See generally In re Korean Air Lines Disaster, 265 U.S. App. D.C. 39, 829 F.2d 1171, 1176-84 (D.C. Cir. 1987) (Ginsburg, J., concurring), aff'd on other grounds sub nom. Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 104 L. Ed. 2d 113, 109 S. Ct. 1676 (1989); see also In re Pan American Corp., 950 F.2d 839, 847 (2d Cir. 1991) (adopting Korean Air Lines). Without such a mechanism, "the conduct of multidistrict litigation, which is invariably time consuming as it is, will grind to a standstill while transferee judges read separate briefs, each based on the case law of a transferor circuit, on a single issue of federal law." Pan Am, 950 F.2d at 847. In most cases such an effort should be futile, since it must be presumed that the Supreme Court will eventually resolve any pertinent split among the circuits and set down a uniform federal law. See, e.g., Chan, 490 U.S. at 124-25, 135 (resolving the split at issue in Korean Airlines).
The Clovine/Ellingson Plaintiffs argue that under Van Dusen v. Barrack, 376 U.S. 612, 11 L. Ed. 2d 945, 84 S. Ct. 805 (1964),
Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941), and Erie R. Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938), this Court must apply the statute of limitations that each transferor court would have applied to these actions. See Berry Petroleum Co. v. Adams & Peck, 518 F.2d 402, 406 (2d Cir. 1975); H.L. Green Co. v. MacMahon, 312 F.2d 650, 653 (2d Cir. 1962), cert. denied, 372 U.S. 928, 83 S. Ct. 876, 9 L. Ed. 2d 736 (1963); In re Plumbing Fixtures Litig., 342 F. Supp. 756, 758 (J.P.M.L. 1972) (per curiam).
Although this argument finds support within Erie's progeny, see Walker v. Armco Steel Corp., 446 U.S. 740, 752-53, 64 L. Ed. 2d 659, 100 S. Ct. 1978 (1980); Guaranty Trust Co. v. York, 326 U.S. 99, 110-12, 89 L. Ed. 2079, 65 S. Ct. 1464 (1945), it ignores the fundamental difference between those cases and the present litigation, just as the Clovine/Ellingson Plaintiffs' reliance on New York law ignores the fact that this cause of action can only be tried in a federal court. Jurisdiction here is based on a federal question. As such, Erie's familiar concerns over state law are inapplicable here. See West v. Conrail, 481 U.S. 35, 39, 95 L. Ed. 2d 32, 107 S. Ct. 1538 n.4 (1987); Isaac v. Life Inv. Ins. Co., 749 F. Supp. 855, 863 (E.D. Tenn. 1990); see also Richard L. Marcus, Conflicts Among the Circuits and Transfers Within the Federal Judicial System, 93 Yale L.J. 677, 679 (1984) ("Erie is simply irrelevant where federal claims are involved").
The reasoning in the cases relied on by the Clovine/Ellingson Plaintiffs in making this argument has been subsequently rejected. The line of authority holding that a transferee court should apply the law of the transferor court in federal claims transferred pursuant to § 1407 finds its genesis in Plumbing Fixtures, 342 F. Supp. at 758 ("It is clear that the substantive law of the transferor forum will apply after transfer," citing Van Dusen v. Barrack, 376 U.S. 612, 11 L. Ed. 2d 945, 84 S. Ct. 805 (1964)). This language has, however, been expressly withdrawn by the Multidistrict Panel:
Any suggestion to the contrary in dictum found in Plumbing Fixtures is withdrawn. Indeed, the dictum in Plumbing Fixtures is itself questionable given that Plumbing Fixtures was a litigation arising under the federal courts' federal question jurisdiction and Van Dusen, on which the Panel relied in support of its dictum, was an action arising under the federal courts' diversity jurisdiction.
In re General Motors Class E Stock Buyout Sec. Litig., 696 F. Supp. 1546, 1547 n.1 (J.P.M.L. 1988). The other cases these Plaintiffs have cited in support of this argument principally rely on Plumbing Fixtures. See, e.g., Berry Petroleum, 518 F.2d at 408 n.7; In re Haven Industries, Inc., 462 F. Supp. 172, 179 (S.D.N.Y. 1978). To this extent, then, the reasoning of these cases is now called into question.
In its place, the federal courts have adopted two considerations for cases transferred under 28 U.S.C. § 1407: first, that statutes of limitations are either federal or procedural in nature, and second, that the circuits do not need to defer to other circuits' interpretation of federal law if it conflicts with their own.
In the MDL context, the statute of limitations may not be a matter of state law at all, and as such, the limitation period should be decided by a federal transferee court in accordance with its own interpretation of federal law "without deference to any contrary interpretation of a transferor circuit." In re General Dev. Corp. Bond Litig., 800 F. Supp. 1143, 1146 (S.D.N.Y. 1992). Since "the choice of a limitations period for a federal cause of action is itself a question of federal law," Del Costello v. International Brotherhood of Teamsters, 462 U.S. 151, 159 n. 13, 76 L. Ed. 2d 476, 103 S. Ct. 2281 (1983), the limitations periods for federal causes of action, from wherever derived, are not matters of state law in any meaningful sense and should not, in the transfer context, implicate Van Dusen principles. As the court in General Development noted:
It seems . . . clear that the best reading of the F.D.I.C.'s Improvement Act's phrase "laws applicable in the jurisdiction," as it applies to a complaint . . . filed before the date of the decision in Lampf and transferred here, is that the jurisdiction referred to must be the one in which the federal transferee court sits . . . i.e., the one- and three- year period set forth in Ceres Partners."