MDL Strikes Back

Andrew D. Bradt, Zachary D. Clopton & D. Theodore Rave

Bradt is the Shannon Cecil Turner Professor of Jurisprudence at University of California Berkeley School of Law, Clopton is the Daniel Hale Williams Professor of Law at Northwestern University School of Law, and Rave is the Bernard J. Ward Centennial Professor of Law at the University of Texas School of Law. Thanks to Bruce Markel, Troy McKenzie, and David Molton for helpful conversations. Madeline Love and Jackson Roberg provided excellent research assistance.

11 May 2026

One of the crucial insights of the judges responsible for the Multidistrict Litigation Act was that no one could opt out. Indeed, the whole idea of MDL is that everyone is stuck there, required to participate in pretrial proceedings until the litigation is resolved or the Judicial Panel on Multidistrict Litigation (JPML) decides it’s time for remand.1 MDL has, one might say, an imperial quality. But what if there’s an escape hatch to exit an MDL that’s not going your way? Well, some defendants in high-profile mass-tort MDLs seem to think they have found one: bankruptcy court. Even if the liability threatened in the MDL would not render the defendant corporation insolvent, some creative lawyers believe they have devised an escape pod to get their cases out of MDL and into the supposedly friendlier confines of bankruptcy.

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