On Friday the Fifth Circuit Court of Appeals did about the most bizarre thing that I can recall an appellate court ever doing in the Comer v. Murphy Oil case: dismissed an appeal without deciding it because it did not have a quorum to decide the case. Needless to say, it’s caused a huge stir that you can read about at NMC, Anderson Blogs, and Consumer Class Action and Mass Torts, among other places.

The case at issue was the novel case where plaintiffs sued oil companies for causing climate change that makes hurricanes—specifically, Katrina—worse. We can debate the plaintiff’s causation theory another day. The important point is that the Fifth Circuit couldn’t get a quorum to decide the case, presumably because the justices owned stock in the defendant companies, which included BP and other major oil companies. So the Court punted the case without deciding the appeal even though the issues were ripe for determination. I honestly did not know that was an option.

Oops. Looks like President Obama should have been in a bigger hurry in getting Justice Graves confirmed to fill Judge Barksdale’s seat on the Fifth.

It is almost guaranteed that the Gulf Oil Spill litigation will involve multiple appeals from the district courts to the court of appeals. But for the cases in the Fifth Circuit, there is an apparent likelihood that the appeals court will be unwilling unable to hear the appeal. This litigation is going to need an appellate court that has the guts “quorum” to decide the issues. In short, the litigation needs to be somewhere where the appellate court can hear the case. That’s somewhere other than the Fifth Circuit.

This means that the MDL should not be located in the states that comprise the Fifth Circuit: Texas, Louisiana and Mississippi. How big of an advantage would it be for the oil companies to get the MDL in front of a hand-picked judge in Houston with no appellate court in play? Too big.

The MDL panel needs to think about this and locate the MDL in another circuit. For instance, in the Eleventh Circuit, which includes Alabama and Florida. Or even in a court located on the other side of the county where there is a district judge and appellate court that can hear the case.  

Incidentally, while I do not always agree with every decision by the Mississippi Supreme Court, I cannot imagine our justices doing what the Fifth Circuit did in Comer v. Murphy Oil.