Proposed FRCP Rule 16.1 Targets Common Multidistrict Litigation Challenges

Over the past few decades, more than one million lawsuits filed in federal courts have been consolidated into multidistrict litigations (“MDL”). Yet, there are no formal Federal Rules of Civil Procedure (“FRCP”) governing MDL practice and procedure.

To address this issue in light of the growing use of MDLs, the Advisory Committee on Civil Rules, a subcommittee of the Judicial Conference’s Committee on Rules of Practice and Procedure, recently published a proposed amendment to the FRCP that would formally cement MDLs in the rules and opened a corresponding public comment period.

However, many attorneys, legal experts, and litigants have raised concerns about the effect of a formal rule for MDLs and the effectiveness of the Advisory Committee’s proposed rule.

Details of Proposed FRCP Rule 16.1

The proposed rule, titled “Rule 16.1 Multidistrict Litigation,” covers four major aspects of MDLs:

1. The initial MDL management conference;
2. Designation of coordinating counsel and possible selection of leadership counsel;
3. Preparation of a report for the conference; and
4. The initial MDL management order.

The rule also enables a federal court overseeing a newly established MDL to conduct a case management conference and facilitate discussions or negotiations among the parties. The rule identifies 11 matters that parties and the court may include in the conference report, including:

• The factual and legal issues likely to be presented during MDL proceedings;
• Proof of claim viability;
• Consolidated pleadings;
• Settlements; and
• Direct filing orders.

Under the rule, a court may require parties to address some or all of the matters listed in the rule in the conference report or any other matters the court or the parties wish to address. The rule encourages courts to issue a case management order addressing the matters included in the conference report.

Initial comments and criticism

Not surprisingly, one of the most consistent criticisms levied against the proposed rule is that it does not contain any mandatory provisions.

Although the drafting subcommittee cited the need for flexibility in managing an MDL, many public commenters have noted that the lack of mandatory requirements would mean the rule would fail to serve its basic purpose: preventing ad hoc or inconsistent practices among courts managing MDLs. The variation across courts today regarding how they manage MDLs frequently leads to uncertainty concerning how a particular MDL will proceed, which is problematic for both the parties to an MDL and their counsel. Other commenters characterized the proposed rule as merely a guidance document that cannot provide value on the level of other resources like the Federal Manual for Complex Litigation.

Some product liability defense practitioners have criticized the proposed rule for failing to do more in addressing non-viable claims, including those brought by plaintiffs who cannot prove they used the product at issue or suffered a signature injury, or whose claims are barred by applicable statutes of limitations. Critics note that such claims, when handled individually, would typically be dismissed at the pleadings stage.

Other critics complain that the rule is too focused on mass tort and product liability MDLs and may provide less guidance for other MDLs, such as securities cases or single-site disasters.

Additionally, other critics have noted that the rule problematically allows for:

• Insufficient guidance regarding the selection of “coordinating counsel”;
• An opportunity for coordinating counsel to be replaced by “leadership counsel” who had no role in drafting the conference report;
• The likelihood that the issues identified in the rule cannot be resolved in a single report; and
• Using consolidated pleadings and direct filing orders, which may contradict existing federal rules.

What Establishing MDLs in the Federal Rules of Civil Procedure Could Mean for Mass Tort Litigation

Although having formal rules for MDLs in the FRCP could help eliminate the variability in MDL procedures that frequently causes confusion and headaches for parties to MDLs and their counsel, rule-makers face challenges in balancing the competing interests of providing sufficient guidance while maintaining flexibility. Many critics of the proposed Rule 16.1 argue that the lack of mandatory language means the rule will do little to standardize MDL practice among federal courts.

Given the complexity of multidistrict litigation, a single Federal Rule of Civil Procedure regarding MDLs will have a tough time providing the guidance and structure that attorneys who represent parties in MDLs are eager for. However, the fact that the Advisory Committee on Civil Rules has drafted a proposed formal rule for MDLs is a promising first step and suggests there may be more formalized guidance and structure coming soon to MDLs in the form of rules of civil procedure specifically applicable to MDLs.

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