[5] In January 1962, Chief Justice Earl Warren appointed a Co-ordinating Committee for Multiple Litigation (CCML) of the United States District Courts.
[5] The CCML responded to the emergency with a number of ad hoc procedures that would become commonplace in multidistrict litigation, such as consolidated national depositions and document depositories.
[5] In the course of its work, the CCML discovered that complex litigation involving similar issues in multiple districts was becoming a regularly recurring problem in federal courts, and recommended the enactment of a formal statutory foundation for their management in March 1964.
[6] The CCML changed course in June 1964 after observing the messy and time-consuming battle in the Advisory Committee over its proposed amendments to the FRCP joinder rules—especially Rule 23, the source of the modern opt-out class action.
[6] The New York corporate defense bar recognized the significant risks posed by the future aggregation of plaintiffs' claims in MDLs to large defendants (like their own clients).
[6] They hammered out a compromise under which the lawyers dropped their opposition to the bill in exchange for the chance to assist with the drafting of what eventually became the Manual on Complex Litigation (a handbook of nonbinding guidelines for judicial management of MDLs).
[6] After the ABA dropped its opposition, Congress finally passed the bill, and the MDL statute was signed into federal law by President Lyndon B. Johnson on April 29, 1968.
[6] In the decades since Congress enacted the MDL statute in 1968, MDLs have evolved into the federal judiciary's primary method for managing complex civil litigation.
[7] In early 2020, the JPML published statistical data revealing that by the end of 2018, 51.9 percent of all pending federal civil cases had been centralized into MDLs.
[7] In connection with MDLs' rise to prominence, they have become subject to widespread criticism from attorneys for both plaintiffs and defendants because they largely operate outside of the traditional civil procedure framework established by the FRCP.
[9][10] The primary exception to the current interpretation of Section 1407 as prohibiting self-transfers is that the parties can voluntarily consent to keep a case in the transferee court for trial.
The result is that a MDL judge often has to sort through the laws of two, three, or four separate jurisdictions, none of which may be the state which the transferee court sits in, just to determine whether a plaintiff has a viable cause of action.
Only Colorado, New York, Texas, and West Virginia follow the federal model of maintaining a standing panel of judges to handle centralization issues.
Only Kansas, New York, and Texas follow the federal rule that transfer is solely for pretrial proceedings and cases must be remanded back to transferor courts for trial.