Initially, many plaintiffs’ lawyers expressed concern about applying a “one-size-fits-all” rule to encompass MDLs, which can vary with the number of lawsuits and types of claims. Written to provide recommendations to judges (rather than requirements), the preliminary draft of the new Rule 16.1 sought to cover (1) initial management conferences (including pre-conference report contents), (2) designating coordinating counsel for the management conference, (3) and initial management orders to address the appointment of leadership counsel and an initial management plan.
Implemented after public comment, the most significant amendments now up for vote focus on the following:
- Applicability of the Federal Rules in MDLs: If adopted, the new rule would clarify that the Federal Rules of Civil Procedure apply in MDLs, including rules governing pleading, Rule 11(b), and that the exchange of information under section (b)(3)(B) is not discovery.
- Elimination of the “coordinating counsel” position: The initial proposed rule suggested that courts consider appointing an attorney to act as “coordinating counsel,” with potential alternative approaches to retain an attorney as “liaison counsel,” a concept employed in the Manual for Complex Litigation (4th) in section 10.221 to deal with “essentially administrative matters.” After strong opposition to this proposal during the public comment period, this suggestion has now been removed from the rule entirely.
- Tiered approach to “early court action” on certain issues: The new Rule 16.1(b)(2) outlines issues that the parties must address in conference unless the court orders otherwise (“tier 1” issues), while under the new Rule 16.1(b)(3), parties would be required to provide the court with “initial views” on other issues (“tier 2” issues):
- Tier 1 issues, which would call for early court action, include previously entered scheduling orders or other orders that should be vacated or modified, scheduling additional management conferences, managing the filing of new actions in the MDL, whether related actions have been filed or are expected to be filed, and whether consolidated pleadings should be prepared.
- Tier 2 issues, which would not so often call for early court action, would include principal legal and factual issues likely to be presented, how and when the parties will exchange information about the facial bases of claims and defenses, anticipated discovery, likely pretrial motions, potential resolution, and referral to a magistrate judge or master.
Though a considerable effort was made to address public comment throughout the editing process, the advisory committee should expect additional feedback and calls for additional changes. For example, the tiered approach to “early court action” on certain issues was not addressed during the public comment process and thus without input about which issues belong in which tier. Further, the tiering process as a whole may confuse new MDL judges and result in odd outcomes.
For example, as Lawyers for Civil Justice (LCJ) explained in its comment to the new amendments, the placement of claim sufficiency in tier 2 “is a step backward” because “it almost always requires early court action,” including addressing the court’s independent obligation to assess jurisdiction and to curtail insufficient claims as early as possible. LCJ pointed to In re Paraquat Products Liability Litigation in the U.S. District Court for the Southern District of Illinois, in which Chief Judge Rosenstengel reiterated, after nearly three years, that cases presenting “implausible or far-fetched theories of liability” and that “would not have been filed but for the availability of this multidistrict litigation” continue to be filed in the MDL.
Relatedly, a previous proposal that would have included an expanded interlocutory review—which would emulate Rule 23(f)’s immediate review of class certification decisions—did not ultimately make it into the new amendments, as the advisory committee determined “there was not such a need for expanded review in light of existing methods (including certification under 28 U.S.C. § 1292(b)), and that idea was put aside.”
By the time this article was published, the advisory committee’s vote has been completed. Yet, the varying ways in which judges will implement the new Rule 16.1’s recommendations are anyone’s guess. Given that judges will continue to have flexibility to fashion requirements in light of the needs of any particular MDL, the impact of the new Rule 16.1 will depend on the same MDL administration factors that have largely driven MDL practice before the new rule. These are coordination and cooperation between counsel, and when not possible, effective lawyering to best ensure MDL judges do not find themselves in the same awkward position as Judge Rosenstengel three years into the In re Paraquat MDL.
