The Federal Advisory Committee on Civil Rules has opened public comment on proposed Rule 16.1, which addresses case management in multidistrict litigation (MDL) proceedings. The proposed rule attempts to provide guidance for both transferee courts and parties on early case management proceedings in MDLs, including the appointment of leadership, early exchange of information, and other case management tasks that often have significant long-term ramifications on the pace and cost of litigation.
The public comment period is open until February 16, 2024, allowing businesses and others to provide input on the proposed rule.
For clients involved in large-scale product liability and mass tort litigation, the proposed rule in its current form does not eliminate the current uncertainty of MDL processes and procedures as it is drafted in permissive, rather than mandatory, language.
THE MDL PROCESS GENERALLY
When multiple lawsuits involve one or more common questions of fact, they become eligible for participation in the federal MDL process. Authorized by the US Congress pursuant to 28 USC § 1407, an MDL may be created by motion of a party or, sua sponte, by the Judicial Panel on Multidistrict Litigation if the panel concludes that an MDL will serve “the convenience of the parties and witnesses and will promote the just and efficient conduct of such actions.”
To be sure, there are benefits to the MDL process in the right set of cases. An MDL can provide a defendant named in mass litigation with the opportunity to consolidate all of the cases in a single forum, proceeding in front of a single district judge for all pretrial purposes including dispositive motions on common issues. MDLs may also minimize the risk of duplicative and potentially inconsistent discovery orders and establish some logical order to trial settings.
The MDL process is not without faults, however, and in certain cases can actually increase the expense and burden to a defendant and potentially delay thorough consideration of dispositive motions. One of the sources of frustration for parties involved in MDL proceedings is the absence of clear rules for transferee courts and parties to follow.
Typically, when a case is assigned to a transferee court by the Judicial Panel on Multidistrict Litigation, the transferee court also receives a broad grant of power to manage the cases for pretrial purposes as it sees fit. And while case law has generally developed to hold that the Federal Rules of Civil Procedure govern MDLs just as with any other civil case, there are a number of extra-procedural devices (e.g., the use of Plaintiff Steering Committees, Plaintiff Fact Sheets, Defendant Fact Sheets, ad hoc Bellwether Case Selection processes) that MDL courts have utilized to manage cases, which have never been codified.
The absence of procedural rules particularized for governing the MDL process has sometimes resulted in unintended consequences such as a limited ability to ferret out weaker cases at an early stage and increased leverage for plaintiffs that can pool resources and divide the workload. Oftentimes, particularly with “smaller” defendants that may only be named in a few dozen (out of thousands of) cases, the expenses involved in litigating an MDL can far outweigh the benefits of consolidation and can saddle companies with lawsuits that linger for years longer than they otherwise might if they were litigated individually.
PROPOSED RULE 16.1
Against this backdrop, the Federal Advisory Committee on Civil Rules recently opened the public comment period on a new proposed amendment to the Federal Rules of Civil Procedure specifically addressing case management in MDL proceedings. The proposed Rule 16.1 is an attempt by the committee to address the proliferation of MDLs and the growing demand for rules specifically addressing MDL practice and procedure.
Whereas Rule 16 governs pretrial conferences, scheduling, and case management in regular civil lawsuits, the proposed Rule 16.1 would govern such issues in a manner specific to the needs of the MDL setting.
Some of the key language and features of the proposed rule include the following:
- After creation of the MDL, the court in which the MDL is pending should schedule an initial management conference.
- The court should order the parties to meet and confer to prepare and submit a report for the initial MDL management conference addressing matters that the court requests, including
- how and when the parties will exchange information about the factual bases for their claims and defenses;
- a proposed discovery plan;
- whether leadership counsel should be appointed and, if so, its composition, role, limits, and compensation;
- the principal factual and legal issues likely to be presented in the MDL;
- whether consolidated pleadings should be prepared;
- the potential for court-assisted alternative dispute resolution;
- whether matters should be referred to a magistrate or master; and
- other issues including identification and modification of preexisting scheduling and other orders from the individual actions, pretrial motions, a schedule for further conferences, how to manage new filings, and if related actions have been filed or are anticipated to be and the possibility of coordination with those related actions.
- The court may designate coordinating counsel for the purpose of assisting the court with the initial MDL management conference by working with all parties to prepare for the conference and prepare the initial report.
- After the initial MDL management conference, the court should enter an initial MDL management order addressing these matters that will control the course of the MDL proceedings.
PROPOSED RULE’S PERMISSIVE LANGUAGE MAY HAVE UNINTENDED CONSEQUENCES
Notably, the proposed Rule 16.1 frequently uses the permissive should, rather than mandatory language such as shall or must. The frequent use of should is unusual for the Federal Rules of Civil Procedure and is purportedly intended to provide the parties and court in MDL proceedings the flexibility to address the reality that no two MDLs are the same.
For example, the transferee court may, but is not required to, designate coordinating counsel to assist the court with conferences and coordinate preparation of the management plan. And the transferee court may, but is not required to, designate the specific topics the management plan should address, drawing from Rule 16 or the proposed Rule 16.1.
In fact, Rule 16.1 allows the court and the parties to address any matter as they see fit and suggests a number of topics that could be addressed, but critically it does not mandate any of them. The text of the proposed rule is available in full online.
The permissive nature of the draft rule is potentially problematic for a few reasons. First, the rule could exacerbate the lack of uniformity and certainty that presently exists in the MDL process. Because it is drafted in permissive language, it may actually encourage the use of ad hoc rulemaking.
The rule also provides no limits or standards on which district judges should choose the suggestions to apply in any given scenario. Thus, in practice, the proposed rule neither limits nor expands the discretion that district judges already have. Instead, it simply codifies the choices that already exist (thus begging the question: why is the rule necessary at all?).
PROPOSED RULE GOES TOO FAR AND NOT FAR ENOUGH
While a step in the right direction to incorporate guidance in the Federal Rules for MDLs, the proposed rule has its flaws, and the permissive language is not its only problem. For instance, the rule goes too far in suggesting that a court should focus early on settlement and alternative dispute resolution by listing this as an issue to assess at the outset of a case. This suggestion could be viewed as a presupposition—or an implicit bias—that claims are meritorious and that the defendants will ultimately be held liable.
Indeed, many defendants believe that the court’s focus should be on adjudicating claims and determining the merits of a claim, if any, and that courts do not belong in the settlement business. A more fair and effective way for the court to address settlement, if at all, is by engaging in a thorough analysis of dispositive motions at an early stage of the proceeding, which is often absent in MDL proceedings. An early and comprehensive focus on dispositive motions would have the dual effect of limiting the rate of meritless new filings and providing meaningful guidance to the parties for settlement purposes based on an analysis of the claims’ legal merit.
The proposal also goes too far in codifying a court’s ability to appoint “leadership counsel” to make decisions that are ultimately binding on plaintiffs (and their attorneys) that ultimately lose any say in how their claim is litigated. It is not clear that courts even have the authority to do this as a matter of due process.
On the other hand, the proposal does not go far enough in stemming the tide of the mass filing of meritless claims. Alongside the recent uptick in litigation funding and the ability of MDL plaintiffs’ counsel to pool resources to litigate mass claims has come a trend in the filing of significant numbers of meritless claims that do not receive an appropriate level of scrutiny at an early stage of litigation.
This is a result of the lack of a procedural device, or rule, to address the early examination of individual claims short of the often protracted and expensive process of fact and expert discovery and summary judgment motions. The early exchange of information, and a procedural mechanism to ferret out meritless claims without expending enormous time and resources on full-fledged discovery and summary judgment practice, could significantly streamline the MDL process and bring equity to defendants that may not belong in the case in the first place.
CONCLUSION
Unpredictability in the MDL process adds to both the workload and costs associated with already costly and work-intensive proceedings. While judges can and should have discretion, MDLs need a process in place to ensure that the parties on both sides of the “v” know what to expect and have a consistent roadmap for processes and procedures that can be followed and tailored, as needed, for any given case.
To enact the rule with its current nonbinding language would only serve to perpetuate the uncertainty that exists in the world of MDLs. Judges, attorneys, and clients alike would be better served by clear guidance and directives in order to gain certainty in the MDL process. The proposed rule should do more to stem the recent trend of mass filings of meritless claims but should not get into the business of early settlements or leadership committees.
Public comment on proposed Rule 16.1 closes on February 16, 2024, and comments can be viewed online. While any final rule is not expected to take effect until 2025, Morgan Lewis will continue monitoring any developments closely and will issue updates accordingly.
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