Multidistrict Litigation Rules Proposal Gets Chilly Reception

A proposed new rule change for multidistrict litigation management has opened to weak reviews from all sides.

Plaintiffs’ attorneys who oversee those cases said they don’t see a need for new management and organization rules, because judges already have tools to keep mass litigation in check. A defense attorney and a law professor say the proposal doesn’t address real problems and only creates the illusion of action without addressing concrete management issues.

Multidistrict litigation proceedings, known as MDLs, involve transferring civil cases with similar issues to a single district judge to handle pretrial proceedings. Cases in MDLs are so voluminous that they account for the majority of the federal civil docket.

Among other things, the proposed new Rule 16.1 outlines procedures for an initial management conference. It also advises the court to order parties to meet and provide a report before the first management conference, and enter a management order that controls the proceedings. The report may identify the main factual and legal issues likely to come up in the proceeding and how parties will exchange information about their cases.

The Judicial Conference Advisory Committee on Civil Rules on Tuesday teed up the proposal for public comment, pending approval from the Judicial Conference’s Standing Committee, which is expected to meet in June.

A civil rules subcommittee has been exploring a potential proposal since 2017.

Plaintiffs’ Side

Plaintiffs’ attorneys questioned what the rule would accomplish and said they don’t think it’s necessary.

“The reality is that many of the goals in this proposed rule happen organically because of the skill sets of the transferee judges and the lawyers that work within these MDLs,” plaintiffs’ attorney Kelsey L. Stokes of Fleming Nolen Jez LLP in Houston said.

“There is no one-size-fits-all MDL,” said Stokes, who is co-lead counsel for the plaintiffs in two proceedings involving hernia mesh. “I would hate for a set of rules to stymie the creativity of the judges and parties involved who would otherwise craft orders and procedures that fit for their MDL’s unique set of facts and procedural history.”

By electing to focus on standardized preliminary procedures for judges overseeing MDLs, “the proposed new Rule seems to replace judicial education with rigid standards that will inevitably have negative, unintended consequences,” Adam J. Levitt, a founding partner of DiCello Levitt and a lead counsel in more than 20 MDLs, said.

The reputation of MDLs could be pushing some of the changes, attorneys say.

Chris Seeger, co-lead counsel for plaintiffs in social media litigation and the sprawling 3M earplug litigation, acknowledged “a perception, pushed by defense,” that MDLs have become a place to “park” claims that aren’t valid.

But he said MDL judges “do a good job” monitoring the litigation, and in any event, existing civil procedure rules already address these concerns.

Seeger, of Seeger Weiss LLP in Ridgefield, N.J., called the new proposal “a restatement of what lawyers and judges already are doing” and said he didn’t anticipate much of an effect if enacted.

Defense Perspective

Defense attorney James M. Beck of Reed Smith LLP in Philadelphia cited other problems with the proposal, saying the new rule “is so tentative that it is difficult to see what the benefit is.”

This proposal discusses only “exchange” of information, and sets no mandatory requirements for anything, he said.

The “critical problem with MDLs, and why they are taking over the federal docket,” is that all the rules governing initial pleadings are being ignored, “with the result that huge numbers of unverified, unvetted cases are filed in MDLs, where they persist for years,” Beck said.

The proposed rule “provides only the illusion of action while doing nothing to solve the existential MDL management problem that everyone knows exists,” said Beck, who represents pharmaceutical and medical device companies and co-founded the Drug and Device Law blog. “The MDL judges don’t want any rule with teeth because they can use the pressure of numbers to force settlement rather than engage in the sort of pre-trial proceedings that Congress intended the MDL statute to accomplish.”

Elizabeth Chamblee Burch, Fuller E. Callaway Chair of Law at University of Georgia Law School, whose scholarship includes civil procedure, class actions, and mass torts, also faulted the proposal for ignoring “very real problems.”

For example, it offers no criteria to appoint leaders and no requirement that plaintiff-side leaders adequately represent all the plaintiffs, Burch said. Nor is there a requirement that judges consider whether settlement terms are fair in the end, she said.