United States: And Now A Word To The Panel: Happy 50th!

Welcome to the latest installment of And Now a Word from the Panel, a column which "rides the circuit" with the Judicial Panel on Multidistrict Litigation as it meets on a bimonthly basis at venues around the country. As the panel heads to the "Windy City" (Chicago) for its May 31 hearing session, this column celebrates the panel's golden anniversary with words of birthday wishes "to" (rather than "from") the panel, and a retrospective look at the panel's 50-year history since the enactment of the MDL statute in April 1968.

But before we take that stroll down memory lane, let's take a quick look at the results from the panel's March hearing session held in Atlanta. The panel continued its busy 2018, ruling on another 11 motions to create MDL proceedings.

This brought the total number of new MDL motions considered this year by the panel to 24, more than half of the motions considered during the entirety of 2017. In denying six motions and creating five new MDL proceedings, the panel's 2018 "batting average" now sits at an even .500 (12 for 24), with five of this year's new MDLs involving product liability/sales practices.

With nine new MDL motions currently scheduled to be heard this week, the panel will have considered a total of 33 MDL motions during the first half of 2018. If this pace continues, the panel is on track to hear more motions on an annual basis than it has heard over the past few years. At the same time, the overall number of pending MDL proceedings has declined slightly to 221¹, as compared to 224 just two months ago. The panel continues to close out older MDL dockets, terminating a total of 15 existing MDLs this year through mid-May.²

Looking Back: 50 Years Ago

On April 29, 1968, President Lyndon Johnson signed into law the multidistrict litigation statute, codified at 28 U.S.C. § 1407. As the legislative history observed, the bill "was based on the experience of the Coordinating Committee [for Multidistrict Litigation of the United States District Courts] in supervising nationwide discovery proceedings in the electrical equipment cases which flooded the Federal courts in the early 1960's."³ In that electrical antitrust litigation, more than 1,800 cases were filed in more than 30 federal district courts.⁴ Thus, the need for a formalized procedure for handling the common discovery associated with that type of multidistrict litigation loomed large.

As mandated by law, the panel consists of seven judges — comprised of U.S. district court and court of appeals judges, no two of whom may be from the same circuit. The panel members are selected by the chief justice of the United States. 50 years ago this week, on May 29, 1968, Chief Justice Earl Warren appointed the inaugural seven panel members, with Judge Alfred P. Murrah of the United States Court of Appeals for the Tenth Circuit serving as the first panel chairman.

Looking Back: By the Numbers

To provide a very brief perspective as to how far the MDL world has come over the past half-century, here is some historical MDL trivia by the numbers:

• 626,938 individual actions in MDL proceedings 
• 16,600 individual actions remanded from MDL proceedings to original district
• 2,853 MDL petitions filed
• 1,725 MDL proceedings⁵
• 50 panel judges⁶

Looking Back: The First MDL Motion

On June 6, 1968, about a month after the ink had dried on the president's signature to the MDL bill, and approximately one week after the panel members were in place, the first MDL motion was filed.⁷ That motion arose from a series of intellectual property actions.⁸ In denying the motion to transfer those actions to the Northern District of Illinois, the panel held that it was "of the opinion that no useful purpose contemplated by Section 1407 would be served by the transfer of any of the pending cases to any other district."⁹ The panel provided no further explanation as to its reasoning.

At its first hearing session, held on Aug. 8, 1968, the panel also considered several motions to create an MDL proceeding for a series of antitrust cases filed by governmental entities (states, counties and cities) arising from the sale of library editions of children's books.¹⁰ The litigation involved 21 actions pending in eight different district courts.

On Oct. 17 — a week after Mickey Lolich and the Detroit Tigers defeated the St. Louis Cardinals to win the seventh game of the 1968 World Series — the first MDL proceeding was born. In contrast to its pithy decision denying the first MDL petition, the panel's unanimous decision establishing the first MDL proceeding in many ways resembles the analysis provided to this very day by the panel in its transfer orders. Indeed, it might be said that the panel's first decision granting an MDL motion serves as a useful template for future panel transfer orders.

The panel initially considered arguments advanced for and against an MDL. Notably, the panel rejected an argument (sometimes made today as well) that parties "of limited means should not be compelled to travel to a distant forum."¹¹ The panel found that argument to be a "worm's eye view of Section 1407. ... [T]he Panel must weigh the interests of all the plaintiffs and all the defendants, and must consider multiple litigation as a whole in the light of the purposes of the law."¹²

As it does today, after concluding that the MDL motion should be granted, the panel considered where the MDL should be venued. And, as is often the case today, "each of [the] groups of litigants advance[d] plausible arguments for the consolidation of the cases in the district most convenient to the members of the group."¹³After analyzing where defendants have their principal offices, the location of witnesses and records, where cases are pending and court calendar congestion, the panel found that the Northern District of Illinois (Chicago) was "best suited for coordination and consolidation of the cases."¹⁴

Chicago was where the Unites States filed antitrust actions, where many plaintiffs sought to intervene and where grand jury documents were located. The panel further found that "statistical evidence of [court] congestion ... is not conclusive" and "although air travel renders both California and New York readily accessible, there is still something to be said for the convenience of a geographically central forum in coast-to-coast litigation."¹⁵

Yesterday and Today

As reflected above, as much as things change, they remain the same. Moreover, in creating the first MDL proceeding, the panel's reasoning rested upon a finding that transfer "will best serve the convenience of the parties and witnesses, and best promote the just and efficient conduct of the litigation."¹⁶ This reasoning resonates with modern-day MDL practitioners and is, at bottom, what ultimately still determines whether or not an MDL will be created. Perhaps appropriately, the panel now returns to Chicago for this month's hearing session — the home of the first MDL proceeding.

What will the first MDL hearing session of the panel's second half-century bring? Will we continue to see an increasing trend in new panel motions? Will the panel be able to break .500 again before the "All-Star break?" Stay tuned for our next edition of "And Now a Word From the Panel," when the panel heads to Santa Fe, New Mexico, for its July 26 hearing session.

Footnotes

1 http://www.jpml.uscourts.gov/sites/jpml/files/Pending_MDL_Dockets_By_District-May-15-2018.pdf.

2 http://www.jpml.uscourts.gov/sites/jpml/files/Recently_Terminated%20MDLs-1-1-2018_to_5-15-2018.pdf

3 See H.R. Rep. No. 90-1130 (Feb. 28, 1968).

4 Id.

5 The number of historical MDL proceedings was calculated by adding the (i) 221 current pending MDL proceedings; (ii) 1,474 MDL proceedings reported as terminated as of Sept. 30, 2017; (iii) 15 terminated proceedings this year; and (iv) 15 terminated proceedings between mid-September 2017 and the end of 2017. The total number of individual actions and remanded actions are as of Sept. 30, 2017 (the end of the last fiscal year); the total number of MDL petitions is as of May 23, 2018.

6 http://www.jpml.uscourts.gov/sites/jpml/files/Current_Former_Judges_of_the%20Panel-10-9-2015.pdf.

7 Panel Docket Sheet, MDL No. 1, Doc. 1, at 2.

8 In re Eisler Patents (MDL No.1), 297 F. Supp. 1034 (J.P.M.L. Sept. 17, 1968).

9 Id. at 1034.

10 In re Library Editions of Children's Books (MDL Nos. 2, 4, 5, 6, 7), 297 F. Supp. 385 (J.P.M.L. Oct. 17, 1968).

11 Id. at 386.

12 Id.

13 Id.

14 Id. at 387.

15 Id.

16 Id. at 385.

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