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ICYMI: A Proposed New Rule for Managing Multidistrict Litigation Is Making Its Way Through The Approval Process

ABSTRACT: The Advisory Committee on Civil Rules recently proposed a new rule to create a framework for courts managing multidistrict litigation, also known as MDLs. Historically, there has been no reference to multidistrict litigation in the Federal Rules of Civil Procedure, creating the impetus for Proposed New Rule 16.1, which is designed to provide a framework for the initial management of MDL proceedings.

Multidistrict litigation (“MDL)” is increasingly on the rise. MDLs are utilized in an effort to consolidate discovery and case management in various lawsuits, such as in toxic tort and product liability matters, that involve the same subject matter, but are filed in different jurisdictions. The Multidistrict Litigation Act, 28 U.S.C. § 1407 empowers the Judicial Panel on Multidistrict Litigation to transfer one or more actions for coordinated or consolidated pretrial proceedings, which promotes efficient conduct of those actions.

However, there can be hundreds of MDLs pending at any one time, each focusing on the consolidation of thousands of claims. Recent high-profile MDLs include National Prescription Opioid Litigation (MDL 2804), In Re: Zantac (Ranitidine) Products Liability Litigation (MDL 2924), In Re: Roundup Products Liability Litigation (MDL 2741), and In re: Juul Labs, Inc., Marketing, Sales Practices, and Products Liability Litigation (MDL 2913). Curiously, however, the Federal Rules of Civil Procedure (“FRCP”) do not contain a formal rule that provides uniform practice and procedure in the MDL setting. 

To address this, the Advisory Committee on Civil Rules recently proposed the first FRCP to specifically govern the initial management of MDLs, Proposed New Rule 16.1. The Advisory Committee, a subcommittee of the Judicial Conference Committee on Rules of Practice and Procedure (“the Conference”), studies the FRCP and proposes changes to the rules. It is the Conference that recommends changes of the FRCP to the United States Supreme Court. Upon review and approval, the United States Supreme Court, with the consent of Congress, enacts the FRCP.

Given the rise of MDL proceedings and the lack of formal rules, the need for the proposed procedure outlined in Proposed New Rule 16.1has been on the Advisory Committee’s radar since at least 2017.  Specifically, while the FRCP contains Rule 16, which governs pre-trial conferences, scheduling, and case management in regular civil proceedings, that Rule does not specifically address the unique needs of MDL proceedings. This is where the Advisory Committee believes Proposed New Rule 16.1can fill such a void to assist courts and parties in the initial management of an MDL proceeding. While the new rule would largely codify existing practice in MDL proceedings, its main purpose is to provide more clarity and certainty in this area.

After the creation of the MDL, the Rule states that “the transferee court” where the MDL is pending “should schedule an initial management conference to develop a management plan for orderly pretrial activity in the MDL proceedings.” (Rule 16.1(a)). Proposed New Rule 16.1goes on to permit, but not require, the MDL court to “designate coordinating counsel to assist the court with the initial MDL management conference.” (Rule 16.1(b)). This coordinating counsel, if designated, would work with the parties to prepare for the conference and prepare the Report for the initial MDL management conference, which is further detailed in the next section.

The Report, which, again, is strongly encouraged, but not required by the Rule, should be ordered by the Court as a joint effort of the parties. If so ordered, however, the Report must address matters that the Court requests, including:

(1) Whether and to what extent leadership counsel should be appointed (i.e., define the procedure for selection, structure and leadership of appointed counsel, discuss roles and limits, and compensation);

(2) Identification of principal factual and legal issues likely to be presented;

(3) Exchange of information supporting the parties’ claims and defenses (e.g., fact sheets);

(4) A proposed discovery plan;

(5) Whether and, if so, how Court facilitated settlement should occur; and,

(6) Additional issues including pre-existing scheduling order or other orders remaining from the transferor courts, potential pre-trial motions, any additional case management conferences needed, potential consolidation of pleadings, need for referrals to a magistrate judge or master, and potential filing of new actions appropriate for inclusion in and/or coordination with the MDL. (Rule 16.1(c)).

Finally, Proposed New Rule 16.1 recommends that after the initial MDL management conference, the Court should enter an initial MDL management order addressing the matters set forth in Rule 16.1(c) and any other matters in the court’s discretion. (Rule 16.1(d)). The purpose of implementation of such an Order is that same will control the course of the MDL proceedings, unless otherwise modified by the Court.

Proponents of codifying this rule believe it would require the parties, and potentially the Court, to address key discovery issues earlier in MDL proceedings and that, overall, the Rule is needed. However, various opponents of Proposed New Rule 16.1 do not believe it will bring about much, if any, change. Proposed New Rule 16.1 is now in a public comment period. 

Unless major changes are implemented to it, the Rule must then be presented to the Conference and then the United States Supreme Court.  The current timeline for Proposed New Rule 16.1 to go into effect, assuming everything stays on track, is estimated to be 2025, at the earliest.  Be on the lookout here for updates as Proposed New Rule 16.1 makes its way through the approval process.