Class Action Lawyers Lobby Against Multidistrict Case Revamp

Class action attorneys are lobbying for changes to a draft rule on multidistrict litigation that they say could upend decades of best practices used to manage their cases.

Lawyers say the rule, meant to help judges sort through initial stages of litigation that combines similar lawsuits from various parts of the country, is clearly targeted at the complexity of mass tort MDLs rather than at class action MDLs, which commonly pop up in antitrust, data breaches, privacy, and human rights.

Multidistrict litigation with class action allegations made up roughly two-thirds of all pending MDLs as of Sept. 30, according to the US Judicial Panel on Multidistrict Litigation, and include big cases like those accusing airlines of price-fixing.

“The rule tries to put a square peg in a round hole,” said Jeannine Kenney, a partner with Hausfeld, a law firm that handles complex class actions and serves as lead counsel for several MDLs. It “conflates and confuses the management issues of class action MDLs and mass tort MDLs for no reason.”

MDLs have jumped in popularity, with cases residing in them making up roughly 70% of the federal docket as of May 2023, up from about 1.3% in 1981, according to the judiciary’s Advisory Committee on Civil Rules. Driving that increase are mega-cases like the mass tort litigation against 3M Co. over its combat earplugs.

The proposal, which cleared the advisory panel in April, is designed to help judges who are new to overseeing multidistrict litigation, and puts more onus on lawyers to come up with a plan for the case early on, before a judge appoints class counsel. The proposal doesn’t mandate the step, but gives judges flexibility to do it.

However, coming up with a joint plan before appointing class counsel in a class action MDL would be difficult, forcing dozens of lawyers around the country to negotiate, and causing delays and confusion, attorneys say.

“What is written here is not applicable almost at all to the class action practice,” said Pamela Gilbert, a lobbyist and partner with Cuneo Gilbert & LaDuca LLP. She represents the Committee to Support the Antitrust Laws, a Washington-based group advocating for strong antitrust laws that wrote to the advisory committee to express concerns about the rule.

The proposal is set to be heard at a June meeting of the Committee on Rules of Practice and Procedure, and could take effect next year. But class action attorneys face a high bar to changing the rule, given that a six-month public comment period ended in February.

Read More: Proposed Multidistrict Litigation Case Management Rule Advances

Mass Tort Versus Class Action

Mass torts involve hundreds or thousands of individual lawsuits from parties harmed by a product or event. Such lawsuits remain separate even after consolidation and can be difficult for a court to manage due to the multitude of parties involved.

The new rule aims to help judges with initial direction in overseeing such cases. If applied, it would make parties and their counsel complete a number of tasks before the court appoints class counsel, including preparing a joint report that addresses scheduling, discovery, and administrative issues, Kenney said.

In contrast, class action MDLs—lawsuits brought by plaintiffs in different districts around a similar issue—are consolidated into a single action through a lead complaint that supersedes all the previously filed suits. The first step in a typical class action MDL is for the court to appoint one or two counsel to speak for the entire class.

As an example of how the typical class action MDL functions, the Committee to Support the Antitrust Laws pointed to pending multidistrict litigation accusing airline companies of fixing the price of domestic airline tickets. The MDL, which began in 2015, involved consolidating numerous complaints into one class action on behalf of a class of direct purchasers. The court also appointed class counsel before addressing pretrial management issues.

The draft rule is geared more toward mass tort MDL litigation that requires far more planning in advance, said Elizabeth Chamblee Burch, professor at the University of Georgia School of Law and an expert in both class actions and mass torts.

Mass tort cases don’t have the same stringent commonality requirements of class actions, where plaintiffs must have common issues that predominate over individual ones, Burch said.

“You just have to have a common question of fact, which means you have a whole different bunch of people who are harmed in a whole bunch of different ways,” Burch said of mass torts.

MDL Road Map

Proponents say the rule will help courts take a more active role in the initial proceedings of MDLs, and provide judges with uniform standards. That’s especially important as such cases come to more judges who lack experience in multidistrict litigation.

The rule must still go through several stages, underscoring the difficulty of making any changes to the judicial process. If the Committee on Rules of Practice and Procedure, also known as the Standing Committee, approves the rule in June, it will advance to the Judicial Conference, then to the Supreme Court. The earliest it could take effect is December 2025.

The rule addresses problems that have affected MDLs in recent years, including how initial management decisions are made, said Alex Dahl, general counsel to Lawyers for Civil Justice, a group with members including companies and defense bar organizations that advocates for reform of procedural litigation rules.

“There has been a sense in many MDLs that the parties and the judge didn’t know how the case was going to proceed until well into the proceedings,” Dahl said. “This will provide needed structure for that discussion.”

Some mass tort MDLs have swept in numerous uninjured plaintiffs who didn’t use a specific product or sustain an injury, a problem that could be addressed by a judge early on in a case, he said.

Dahl pointed to the mass tort MDL in which former military personnel allege that 3M’s earplugs failed to protect them from dangerous noise levels during combat or military training. As of late last year, the judge in the case was still working to determine whether particular claims belonged in the litigation many years into the proceedings.

Read More: 3M Agrees to Pay More Than $5.5 Billion Over Combat Earplugs

The proposal also makes clear that Rule 23, which governs the appointment of counsel in class actions, applies to MDLs, Dahl said. “Class action lawyers who are concerned will have an opportunity to raise whatever their concerns are with the case early on,” he said.

The Multidistrict Litigation Subcommittee and the advisory committee have been mulling the rule since 2017, and have already incorporated extensive commentary, according to US District Judge Robin Rosenberg, who chairs the advisory committee.

Robert Johnston, partner at Hollingsworth LLP and litigator in complex civil matters, said the rule is suggestive as opposed to prescriptive.

“The fact of the matter is, most of the stuff in this rule is done by judges,” he said. “This is an effort to perhaps standardize a little more.”