Multidistrict Centralization: An Empirical Examination

• Author: Catherine R. Borden,Margaret S. Williams,Kevin M. Scott,Emery G. Lee
• Date: 01 June 2015
• DOI: http://doi.org/10.1111/jels.12070
• Published date: 01 June 2015

Multidistrict Centralization:

An Empirical Examination

Emery G. Lee III, Catherine R. Borden, Margaret S. Williams, and

Kevin M. Scott*

Following the judiciary’s experience with aggregate litigation in the 1960s, Congress estab-

lished a procedure for the transfer of related cases to a single district court for coordinated

pretrial proceedings. Originally designed to achieve efficiencies associated with coordinated

discovery, the multidistrict litigation (MDL) process evolved from a rather modest starting

point to become a central part of aggregate litigation in the federal courts today. Despite its

importance, however, there is little empirical research on the MDL process. This article

seeks to fill this gap in the empirical literature by addressing a few central questions about

the work of the Judicial Panel on Multidistrict Litigation (Panel). Using a unique database,

we examine how that body decided motions to centralize multidistrict litigation. We find,

most importantly, that the Panel became more likely to order centralization of proceedings

over time, after controlling for other factors. That trend is not, however, apparent in the

most recent years’ data. We also find, all else equal, that the Panel is more likely to centralize

a proceeding including class allegations, and more likely to centralize proceedings raising

certain kinds of claims.

In 1968, Congress enacted the Multidistrict Litigation Act (MDL Act), which created the

Judicial Panel on Multidistrict Litigation (Panel).1The MDL Act empowered the Panel to

transfer federal cases involving one or more common factual questions to a single district

for coordinated or consolidated pretrial proceedings. In its 45-year history, the Panel has

considered more than 2,500 motions to transfer and centralized over 400,000 individual

cases in MDL proceedings. This article explores the historical development and current

practice of multidistrict litigation in the federal courts.

Section I reviews the multidistrict litigation process with particular attention to

identifying the goals expressed in the statute and its legislative history. In addition to

*Address correspondence to Emery G. Lee III, Division of Research, Federal Judicial Center, Washington, DC.

Borden and Williams are with the Division of Research, Federal Judicial Center, Washington, DC; Scott is at the

Judiciary Data and Analysis Office, Administrative Office of the U.S. Courts, Washington, DC.

Institutional affiliations provided for identification purposes only. The views expressed in this article reflect those

of the authors and not those of any entity within the judicial branch. An earlier version of this project benefited from

the work of Joe Cecil, Tom Willging, and the late Richard Nagareda. We are grateful to all three for their valuable

contributions.

1Public Law 90-926 (Apr. 29, 1968), codified at 28 U.S.C. § 1407 (West 2009). The Act provides for the transfer of cases

from multiple districts to a single district court and judge for pretrial proceedings.

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Journal of Empirical Legal Studies

Volume 12, Issue 2, 211–235, June 2015

211

discussing explicit grants of authority, it identifies statutory limitations on the authority of

transferee courts and describes the procedures transferee judges use to manage

multidistrict litigation. Section I also draws on Richard Marcus’s thesis that the Panel and

transferee judges exercised a “maximalist” and not a “minimalist” approach to implement

the Act.2Section II then reviews the few published empirical studies of the multidistrict

litigation process, emphasizing the emerging role of the Act in providing a vehicle for

resolving mass torts.

Section III presents our findings. We find, most importantly, after controlling for

other factors, that the Panel became more likely to centralize over time. The baseline

probability of centralization (in a miscellaneous case) increased from 38 percent in 1968 to

47 percent in June 2013.3We also find, after controlling for other factors, that the Panel is

more likely to order centralization if the proceeding includes class allegations, and more

likely to order centralization of proceedings raising air disaster, antitrust, intellectual

property, products liability, and securities issues than proceedings raising other types of

claims. These findings show that while the Panel was always likely to order centralization in

certain kinds of proceedings, over time it became more likely to order centralization in

general. The last few years of data, however, show a downward trend in centralization rate.

Given the increasing number of proceedings and the increasing likelihood of centraliza-

tion, the Panel’s role in aggregate litigation is now central to any understanding of civil

litigation. Section IV presents the conclusion of our findings.

I. Background

A. Origin and Purposes of the Multidistrict Litigation Act

In 1968, at the urging of the Judicial Conference of the United States, Congress enacted

legislation to facilitate interdistrict transfer of related cases.4The stated purpose of the MDL

Act was to “provide for the temporary transfer to a single district for coordinated or

consolidated pretrial proceedings of civil actions pending in different districts which

involve one or more common questions of fact.”5Doing so gave the judiciary the power “to

provide centralized management under court supervision of pretrial proceedings of

multidistrict litigation to assure the ‘just and efficient conduct’ of such actions”6and to

2Richard L. Marcus, Cure-All for an Era of Dispersed Litigation? Toward a Maximalist Use of the Multidistrict

Litigation Panel’s Transfer Power, 82 Tul. L. Rev. 2245, 2249 (2008).

3In referring to the probability or likelihood of an action by the Panel in response to a motion, we are describing the

relationships that exist among data gathered over the past 45 years. These patterns are not necessarily predictive of

future Panel practices, as the Panel may respond to changing circumstances and procedures.

428 U.S.C. § 1407(a) (2009).

5Public Law 90-926 (Apr. 29, 1968).

6H.R.Rep. No. 90-1130 at 2, as reprinted in U.S.C.C.A.N. 1898, 1899 (1968) (Statement of the Coordinating Committee

for Multiple Litigation of the U.S. District Courts, established by the Judicial Conference of the United States).

212 Lee et al.