Inroduction to the Judicial Panel on Multidistrict Litigation

• Judicial Panel on Multidistrict Litigation: The MDL Panel was created by an Act of Congress in 1968 , specifically 28 U.S.C. §1407.

• Purpose of Creation: The creation of multidistrict litigation (MDL) was a direct response to a massive wave of antitrust cases that threatened to paralyze the federal courts in the 1960s.

• Electrical Equipment: Known as the “Electrical Equipment” cases, these lawsuits stemmed from a price-fixing scandal involving major manufacturers. 

• Indictments:  In 1960, a federal grand jury indicted 45 executives from companies like General Electric and Westinghouse for a nationwide bid-rigging scheme.

• Litigation Explosion: Following the successful criminal prosecution, civil litigation exploded throughout the country. 

• Massive Scale: Over 1,900 civil cases were filed in 36 different federal district courts which nvolved over 25,000 claims related to 20 different product lines.

• Discovery Was Unmanageable: The discovery phase of these cases was particularly unmanageable, as many of the same high-level corporate officials were required to give depositions in numerous courts.

• Centralized discovery: The committee created a national document depository and coordinated national depositions.

• Case management: Through aggressive judicial management, the committee was able to bring the litigation under control. Most cases were resolved before trial, conserving judicial resources.

• Permanent Solution: The success of these temporary measures demonstrated that a permanent solution was needed for complex, multi-jurisdictional litigation. 

• Congress Repsonds: Based on the committee’s recommendations, Congress passed the Multidistrict Litigation Act in 1968, enacting 28 U.S.C. § 1407.

• The MDL Panel Was Born: The new law created the Judicial Panel on Multidistrict Litigation, a permanent body with the authority to centralize related cases from different federal districts into a single court for consolidated pretrial proceedings. The purpose was to promote efficiency and consistency by avoiding duplicative discovery and conflicting rulings.

• Function: The Judicial Panel on Multidistrict Litigation temporarily transfers cases with common factual questions to a single federal judge. This judge oversees a consolidated discovery process, manages motions, and may conduct bellwether trials before remanding unresolved cases back to their original court for trial.

• Impact: MDL has become a dominant feature of the federal civil docket, handling a large and growing number of cases, though its actual operation has been criticized for deviating from its original design and pushing for global settlements over individual trials.

• Massive Scale: If you excluder criminal cases and and social-security cases, MDL proceedings constitute a breathtaking amount of over 50% of actions pending in U.S. District Courts.\

The Evolution of Multidistrict Litigation: From Crisis to Coordination in American Federal Courts

• Modern Landscape: The modern landscape of complex litigation in American federal courts bears little resemblance to the chaotic system that existed before 1968. Today’s sophisticated framework for managing multidistrict litigations (MDL), mass torts, and class actions emerged from a crisis that threatened to overwhelm the federal judiciary in the 1960s.

• History: The history of the Judicial Panel on Multidistrict Litigation (JPML) represents one of the most significant procedural innovations in American legal history, transforming how courts handle lawsuits that can be consolidated and establishing the foundation for modern complex litigation management.

The Pre-1960s Litigation Landscape: A System Under Strain

• Fragmented Approach: Before the establishment of the MDL Panel  the federal court system operated under a fragmented approach to handling related cases filed across multiple districts. When similar lawsuits arose from the same underlying facts or legal issues, each district court proceeded independently, creating a patchwork of potentially conflicting rulings, duplicative discovery processes, and inefficient resource allocation.

• Lack of Coordination:  The absence of a coordinated mechanism for managing related cases created several critical problems. Transfer motions were handled on an ad-hoc basis, with no systematic approach to identifying cases suitable for consolidation. Discovery proceedings were duplicated across multiple jurisdictions, imposing enormous costs on both parties and the court system. Perhaps most troubling, the lack of coordination often resulted in inconsistent pretrial rulings and conflicting interpretations of the same legal issues.

• Looming Crisis: This fragmented system worked adequately when complex, multi-district litigation was relatively rare. However, as American commerce became increasingly national in scope during the post-World War II economic expansion, the frequency and complexity of litigation spanning multiple federal districts grew exponentially. The stage was set for a crisis that would fundamentally reshape federal civil procedure.

The Electrical Equipment Antitrust Cases: A Catalyst for Change

• Electrical Equipment:  The pivotal moment in MDL history arrived in the early 1960s with the electrical equipment antitrust cases, a massive litigation arising from one of the largest price-fixing conspiracies in American corporate history. Between 1959 and 1961, the Department of Justice uncovered a vast conspiracy among major electrical equipment manufacturers, including General Electric, Westinghouse, and dozens of other companies, to fix prices and rig bids on electrical equipment sold to utilities and government agencies.

• Criminal Prosecutions: The criminal prosecutions that followed resulted in guilty pleas from 29 companies and prison sentences for seven executives. However, the criminal cases were merely the beginning.

• The scope of the resulting civil litigation was staggering:  Thousands of separate lawsuits were filed across virtually every federal district in the United States. Utilities, municipalities, government agencies, and private companies that had purchased electrical equipment during the conspiracy period sought treble damages under federal antitrust laws. The cases involved identical legal theories, overlapping factual issues, and common defendants, yet they were proceeding independently in dozens of different federal courts.

• Judicial Inefficiency: The electrical epuipment cases created a perfect storm of judicial inefficiency. Discovery was being conducted simultaneously in multiple districts, with the same corporate defendants facing identical document requests and depositions from hundreds of different plaintiffs’ attorneys. Expert witnesses were being deposed repeatedly on the same technical and economic issues. Pretrial motions raising identical legal questions were being briefed and argued in courtrooms from coast to coast.

• The financial and administrative burden was crushing. Defense costs were escalating exponentially as companies were forced to maintain legal teams in multiple jurisdictions. The federal court system was straining under the weight of thousands of related cases, each consuming judicial resources that could have been allocated more efficiently through coordinated proceedings.

The Ad-Hoc Coordinating Committee: Innovation Born from Necessity

• Overwhelmed courts: Faced with this unprecedented crisis, the federal judiciary took an extraordinary step. In 1962, the Judicial Conference of the United States authorized the creation of an ad-hoc coordinating committee specifically to manage the electrical equipment antitrust litigation. This committee, composed of federal judges from districts heavily affected by the litigation, was tasked with developing mechanisms to coordinate pretrial proceedings across multiple jurisdictions.

• Impact and Legacy: The coordinating committee’s approach was revolutionary for its time. Rather than attempting to transfer all cases to a single district, the committee established a system of coordinated discovery and pretrial management while allowing cases to remain in their original venues. The committee designated certain districts as “discovery centers” where key depositions would be taken and document production would be coordinated.

• Standardized Procedures: Judge William H. Becker of the Eastern District of Missouri emerged as the committee’s most influential member. Under his leadership, the committee developed standardized procedures for document discovery, established protocols for coordinating expert witness depositions, and created mechanisms for sharing information among the various district courts handling related cases.

• Bellwether Trials: The committee’s innovations extended beyond mere administrative coordination. They pioneered the use of “bellwether trials” – representative cases tried to verdict to provide guidance for settlement negotiations in the remaining cases. This approach, which would later become a cornerstone of modern MDL practice, allowed the parties to test key legal and factual issues in a controlled setting while avoiding the impossibility of trying thousands of individual cases.

• CCUS Results: The results were remarkable. The coordinating committee’s efforts reduced discovery costs by an estimated 75% compared to what would have been required under the traditional fragmented approach. Pretrial proceedings that might have taken decades were completed in a fraction of the time. Most significantly, the coordinated approach facilitated comprehensive settlement negotiations that resolved the vast majority of cases without the need for individual trials.

Legislative Recognition: The Path to the 1968 Multidistrict Litigation Act

• Permanent Solution: The success of the electrical equipment coordinating committee did not go unnoticed. Legal scholars, practitioners, and members of Congress recognized that the ad-hoc approach, while effective, was insufficient to address the growing trend toward complex, multi-district litigation. What was needed was a permanent, systematic mechanism for identifying and coordinating related cases across the federal system.

• ABA Advocated for Reform: The American Bar Association played a crucial role in advocating for legislative reform. The ABA’s Section of Litigation formed a special committee to study the lessons learned from the electrical equipment cases and develop recommendations for permanent procedural reforms. This committee, chaired by prominent litigator Phil C. Neal, conducted extensive research and held hearings with judges, attorneys, and court administrators who had participated in the coordinated proceedings.

• The committee’s findings were compelling. They documented substantial cost savings, improved judicial efficiency, and better outcomes for both plaintiffs and defendants when related cases were coordinated rather than proceeding independently. The committee recommended the creation of a permanent judicial panel with authority to identify related cases and transfer them for coordinated pretrial proceedings.

• Congressional Hearings: On the proposed legislation revealed broad support from the legal community. Federal judges testified about the administrative burden imposed by fragmented litigation. Corporate defendants described the crushing costs of defending identical claims in dozens of different jurisdictions. Plaintiffs’ attorneys acknowledged that coordination could benefit their clients by reducing litigation costs and facilitating more efficient resolution of claims.

• The legislative process moved with unusual speed. The bill creating the Judicial Panel on Multidistrict Litigation was introduced in both houses of Congress in 1967 and passed with overwhelming bipartisan support. The legislation was signed into law by President Lyndon Johnson on April 29, 1968, as Public Law 90-296, codified at 28 U.S.C. § 1407.

The Birth of the JPML: Structure and Early Operations

• MLA Act of 1968: The Multidistrict Litigation Act of 1968 created a seven-member panel composed of federal judges appointed by the Chief Justice of the United States. The panel was granted authority to determine whether civil actions pending in different districts involve “one or more common questions of fact” and, if so, to transfer such actions to a single district for coordinated or consolidated pretrial proceedings.

• Key Principles: The statute established several key principles that continue to govern MDL practice today. First, the panel’s authority extends only to pretrial proceedings – cases must be remanded to their original districts for trial unless the parties consent to trial in the transferee district. Second, the standard for transfer is relatively low, requiring only “common questions of fact” rather than complete factual or legal identity.

• Broad Discretion: Third, the panel has broad discretion in selecting the transferee district and judge, considering factors such as judicial efficiency, convenience to parties and witnesses, and the experience and capability of the potential transferee judge.

• Experimental Early Years: The panel’s early years were marked by cautious experimentation. The first MDL was created in 1968, involving litigation arising from a hotel fire in Puerto Rico. The panel transferred 17 related cases to the District of Puerto Rico for coordinated pretrial proceedings, establishing precedents for how the new system would operate in practice.

• Set the Standards: Judge Alfred P. Murrah, the panel’s first chairman, emphasized the experimental nature of the new procedure. In early decisions, the panel carefully articulated the standards for transfer and developed procedures for managing the complex logistics of coordinating cases from multiple districts. The panel established requirements for notice to affected parties, created procedures for objecting to transfer orders, and developed protocols for communication between the transferee judge and the courts where cases originated.

Evolution and Expansion: The JPML’s Growing Role

• Explosive Growth: The 1970s and 1980s witnessed explosive growth in the use of MDL procedures. As American society became increasingly litigious and corporate activities became more national in scope, the types of cases suitable for MDL treatment expanded far beyond the antitrust litigation that had inspired the panel’s creation.

• Product liability litigation: Emerged as a major category of MDL cases. The Dalkon Shield intrauterine device litigation, consolidated in the Eastern District of Virginia in 1975, involved thousands of personal injury claims against A.H. Robins Company. This MDL established important precedents for managing mass tort litigation, including the use of bellwether trials to test liability theories and the development of standardized case management orders to streamline discovery in cases involving thousands of plaintiffs.

• Asbestod Litigation: The asbestos litigation of the 1980s presented unprecedented challenges that pushed the boundaries of MDL practice. With hundreds of thousands of potential claimants and dozens of defendant companies, the asbestos cases required innovations in case management that would influence complex litigation practice for decades. The MDL courts developed sophisticated systems for tracking cases, managing discovery, and facilitating settlement negotiations on a scale never before attempted.

• Securities fraud litigation also became a major component of MDL practice. The savings and loan crisis of the 1980s generated numerous securities class actions that were consolidated for pretrial proceedings. These cases established important precedents for coordinating discovery in financial fraud litigation and demonstrated the MDL system’s adaptability to different types of complex cases.

Modern Applications: The JPML in the 21st Century

• The modern era of MDL practice: Has been shaped by several high-profile litigations that have tested and refined the system’s capabilities. The September 11th litigation, consolidated in the Southern District of New York, involved thousands of claims arising from the terrorist attacks and required unprecedented coordination between federal and state court proceedings.

• The Opioid Litigation: Represents perhaps the most complex MDL in the panel’s history. With over 3,000 cases consolidated in the Northern District of Ohio, the opioid MDL involves claims by states, municipalities, hospitals, and individuals against pharmaceutical manufacturers, distributors, and pharmacy chains. The litigation has required innovative approaches to bellwether trial selection, settlement allocation, and coordination with parallel state court proceedings.

• New Catagory of Cases: Recent years have seen the emergence of new categories of MDL cases reflecting contemporary legal and social issues. Data breach litigation, arising from cybersecurity incidents affecting millions of consumers, has become a significant component of the panel’s docket. Environmental litigation related to climate change and contamination events continues to generate complex, multi-district cases requiring coordinated management.

• COVID 19 Pandemic: The COVID-19 pandemic has created new challenges and opportunities for MDL practice. The panel has adapted to remote proceedings and electronic case management while handling litigation arising from business interruption claims, employment disputes, and product liability cases related to personal protective equipment and medical devices.

The Mechanics of Modern MDL Practice

• Sophisticate System: Contemporary MDL practice has evolved into a sophisticated system that bears little resemblance to the ad-hoc coordination of the 1960s electrical equipment cases. Transfer motions are now supported by detailed statistical analyses demonstrating the efficiency gains from coordination. The panel employs advanced case management systems to track related litigation across the federal system and identify potential candidates for transfer.

• Transferee Judge: The selection of transferee judges has become increasingly strategic. The panel considers not only traditional factors such as geographic convenience and docket congestion but also judges’ experience with complex litigation, their case management philosophies, and their track record in facilitating settlements. Some judges have developed particular expertise in specific types of MDL cases, creating informal specialization within the federal judiciary.

• Bellwether Trial Programs: Have become central to MDL practice. These representative cases serve multiple functions: they test the strength of plaintiffs’ claims and defendants’ defenses, provide information for settlement negotiations, and offer guidance for resolving the remaining cases in the litigation. The selection of bellwether cases has become a complex process involving statistical sampling, negotiation between parties, and judicial oversight.

• Case Management: In large MDLs now involves sophisticated organizational structures. Plaintiffs’ steering committees coordinate discovery and motion practice for thousands of individual cases. Defendants often form joint defense groups to share costs and coordinate strategy. Special masters and magistrate judges assist with discovery disputes and administrative matters. Electronic case management systems track the progress of individual cases and facilitate communication among the various participants.

Impact on the American Legal System

• The creation and evolution of the JPML has had profound effects on American civil litigation. The system has enabled the efficient resolution of cases that might otherwise have overwhelmed the federal courts. Complex litigation that once took decades to resolve can now be managed through coordinated pretrial proceedings that facilitate comprehensive settlements.

• Economic Impact: The economic impact of MDL coordination is substantial. Studies suggest that coordinated proceedings reduce litigation costs by 30-50% compared to fragmented litigation. These savings benefit not only the immediate parties but also the broader legal system by freeing judicial resources for other cases and reducing the overall cost of civil justice.

• The MDL system has also influenced the development of substantive law. By consolidating related cases, MDL proceedings create opportunities for comprehensive judicial consideration of complex legal issues. The resulting precedents often provide clearer guidance than the patchwork of decisions that might emerge from fragmented litigation.

• Perhaps most significantly, the JPML has demonstrated the federal judiciary’s capacity for institutional innovation. The system’s evolution from the crisis-driven coordination of the 1960s to the sophisticated case management practices of today illustrates how legal institutions can adapt to changing social and economic conditions while preserving fundamental principles of due process and judicial fairness.

KEY MDL TERMS

Looking Forward: The Future of Multidistrict Litigation

• As the JPML approaches its sixth decade of operation: The system continues to evolve in response to new challenges and opportunities. Technological advances are creating new possibilities for case management and coordination, while also generating new categories of litigation requiring MDL treatment.

• Globalization: The increasing globalization of commerce and communication suggests that the coordination challenges that inspired the JPML’s creation will only become more complex in the coming decades. The panel’s experience in managing large-scale, multi-jurisdictional litigation positions it well to address these emerging challenges while continuing to serve its fundamental mission of promoting judicial efficiency and fairness in complex litigation.

• Legacy: The legacy of the 1960s electrical equipment cases thus extends far beyond the specific antitrust issues that prompted the crisis. The innovative response to that litigation created a permanent institutional framework that has enhanced the capacity of American federal courts to address the most complex legal disputes of our time.

• From mass torts and securities class actions to environmental litigation and data breach cases, the JPML continues to fulfill its essential role in ensuring that lawsuits that can be consolidated receive the coordinated attention they require for just and efficient resolution.

• For more information about current MDL proceedings and the Judicial Panel on Multidistrict Litigation, visit ksd.uscourts.gov and explore the comprehensive resources available through the federal court system’s online portal.