"A radical proposal": the Multidistrict Litigation Act of 1968.

• Author: Bradt, Andrew D.

One of the central stories in current procedural law is the recent and rapid ascendance of federal multidistrict litigation, or, as it is commonly known, MDL. As the class action has declined in prominence, MDL has surged: to wit, currently more than a third of the cases on the federal civil docket are part of an MDL. With MDL's growth has come attention from scholars, much of it critical. One recurring aspect of this criticism is that MDL judges have expanded the MDL statute beyond its modest ambitions. But what were the original purposes of MDL, and where did the statute come from? This Article unearths the origins of MDL by examining the papers of its principal drafters. Those papers reveal that the aims of the small group--a handful of federal judges and one scholar--who developed and lobbied for the statute's passage were anything but modest. Rather, the group believed that a mass-tort "litigation explosion" was coming and that a mechanism was needed to centralize power over nationwide litigation in the hands of individual judges committed to the principles of active case management. Moreover, the papers show that the judges were relentless in their pursuit of the statute's passage and engaged in sharp-elbowed tactics and horse-trading to succeed. In short, MDL was a power grab--a well-intentioned and brilliant one, but a power grab all the same. Understanding the roots of the judges' accomplishment clarifies current debates about MDL and should shift those debates away from fights over the scope of the statute to more normative assessments of the concentration of power the drafters sought and successfully achieved. In short, MDL currently does what its creators intended; critiques of the statute should proceed on those terms, not from the position that MDL has somehow grown beyond its modest ambitions.

INTRODUCTION 832 I. WHAT IS MDL AND WHY IS IT IMPORTANT AND CONTROVERSIAL 842 II. THE ROOTS OF THE MDL STATUTE 847 A. An Imegrated Federal Judiciary and the Ascendance of Pretrial Procedure 847 B. The Electrical- Equipment Antitrust Litigation 854 III. DRAFTING THE MDL STATUTE 863 A. In:vellting Pretrial Transfer 863 B. Drafting the New Statute 871 C. Obtaining Judicial Coference Approval 872 D. Rebuffing the Defense Bar 875 IV. THE BUMPY ROAD TO CONGRESSIONAL PASSACE 883 A. Achieving Department Justice Support 884 B. Roadblock: Opposition by the ABA 887 C. The House Hearings 889 D. Shifting Attention to the Senate 891 E. Back to the House-and Overcoming the ABA 899 F. The Dam Breaks 902 V. ASSESSING THE JUGDE' EFFORTS 907 CONCLUSION 915 INTRODUCTION

As recently as a decade ago, it would have been reasonable to say that multidistrict litigation, the statutory authorization for consolidating cases filed around the country in a single federal district court for pretrial proceedings,(1) was a second banana to the class action, which had long demanded the lion's share of public and scholarly attention.(2) Despite several high-profile examples, scholars have characterized the device, commonly referred to as "MDL," as an obscure device or "disfavored judicial backwater."(3)

To the extent MDL was ever appropriately considered a bit player, things have changed. With the Supreme Court and lower courts cutting back the viability of the class action under Rule 23 for decades and with Congress providing for expanded jurisdiction over class actions in the federal courts,(4) MDL has become the leading mechanism for resolving mass torts.(5) As of June 2014, 36% of all filed federal civil cases were part of a pending MDL, up from 16% in 2002.(6) That now amounts to over 120,000 cases, the vast majority of which are mass-tort matters, including products liability or defective drugs--cases that had been considered by some courts, at least for a brief period, as appropriate subjects for class actions.(7) As astute an observer as Professor John Coffee has lauded the rise of MDL, while saying that "[t]his achievement may have been the product of dumb luck, because the [Judicial Panel on Multidistrict Litigation] was created before the modern class action even arose."(8)

The central aim of this Article is to demonstrate that the preeminence of MDL is not the product of dumb luck, but a realized ambition. The small group of scholars and judges that invented MDL and shepherded it to enactment were remarkably prescient. They predicted in the early 1960s a "litigation explosion" arising from the increased prevalence of mass torts and recognized the need for a device to efficiently process that litigation by centralizing it in the federal courts. Moreover, these judges believed deeply that control of these cases could not be left in the hands of the parties or their attorneys--or even in the hands of federal judges scattered throughout the country committed to what the judges considered outmoded norms of party control of the litigation process.

But, although they saw the need, the proponents of MDL also recognized the radical nature of their proposal in a world where massive "aggregate" litigation was not yet part of the legal vocabulary. As a result, the judges acted strategically at every phase of MDL's development: drafting the statute in limited terms to avoid resistance from the Bar, carefully attracting support from key players in the Judicial Conference and Congress, and eventually overcoming resistance from corporate defense lawyers who sought to kill the proposal. As those current federal litigation statistics amply demonstrate, their project was remarkably successful. Not only were the judges ahead of their time, their creation was built to last. Some fifty years later, MDL is dominant.

A natural way to begin to understand MDLs effectiveness in tort cases is by comparing it to its more famous and now-much-diminished cousin, the class action. In a class suit, a representative files and pursues litigation on behalf of a group of absent plaintiffs. By contrast, in MDL, a panel of federal judges transfers already pending and to-be-filed cases sharing a common question of fact to a single district judge for "pretrial proceedings."(9) After pretrial proceedings are concluded, the statute mandates that cases be remanded to the courts from which they were transferred for trial.(10) Remand, however, happens less than 3% of the time--like most cases, in or out of an MDL, the vast majority of transferred cases are terminated or settled before pretrial proceedings conclude, that is, while they are within the control of the MDL judge.(11) In a world where trials are exceedingly rare, pretrial proceedings are the main event.(12)

In sum, this structure makes MDL, according to one prominent federal district judge, "a 'once-in-a-lifetime' opportunity for the resolution of mass disputes by bringing similarly situated litigants from around the country, and their lawyers, before one judge in one place at one time."(13) Indeed, as another prominent district judge has described it, "[I]t is almost a point of honor among transferee judges... that cases so transferred shall be settled rather than sent back to their home courts for trial."(14) While the concept of the "settlement class" under Rule 23(b)(3) has withered under Supreme Court scrutiny and after the passage of the Class Action Fairness Act of 2005, MDL has begun to accomplish essentially the same end.(15)

Courts and lawyers on both sides of the "v." appear to be adjusting to this new era of MDL ascendancy. Plaintiff-side firms have come to appreciate the ability to join forces to achieve parity with well-resourced defendants.(16) Defendants recognize the opportunity to litigate all claims in a single forum where they can both efficiently perform discovery and motion practice and eventually achieve peace, whether through victory on a dispositive motion or through settlement.(17) And, for judges, the power of MDL to vacuum thousands of cases filed nationwide into one courtroom carries significant docket-clearing benefits.(18)

Scholars' reactions are more mixed. Some laud MDL for its success in achieving settlement of massive cases and for the flexibility it provides transferee judges.(19) But others contend that MDL is a raw deal for individual plaintiffs, who, compared to those in a class action, have fewer formal protections from unfairness but equally little control over the day-to-day conduct of the litigation.(20) For instance, although an MDL is not a representative suit, unlike a class action, there is no right to opt out of an MDL proceeding--once you're in, you're in, often for years until "pretrial proceedings" have concluded.(21) Moreover, while the litigation is within the jurisdiction of the MDL court, the cases are prosecuted primarily by "steering committees" of lawyers appointed by the court. These lawyers, who receive additional fees, take charge of discovery and motion practice and eventually play the most prominent role in negotiating global settlements.(22) In addition, unlike a class action, there is no requirement that a judge review a settlement for fairness.(23) But judges nevertheless play an active role in brokering global settlement deals, and some of those agreements (most notably in the massive set of cases arising from the use of the drug Vioxx) have been criticized as unduly coercive to the individual plaintiffs.(24) MDL, to these critics, presents the worst of both worlds--a statute that provides inadequate power to protect plaintiffs but also no real limitations on judges acting imperially to manage cases and essentially mandate settlement.(25)

Underlying both the criticism and laurels is the sense that MDL was never intended to play the leading role it now does and has been impressed into service as a second-best, jury-rigged alternative to the now-unavailable class action.(26) Dotting these assessments is the perception that MDL "has clearly become much more important than was envisioned by Congress back in the 1960s,"(27) and that what...