Over the past year, the MDL Subcommittee of the Advisory Committee on Civil Rules has held a number of public hearings regarding ways to improve the management of multidistrict litigation, including its biannual public session held on November 1, which we summarize below.
Other organizations and institutions also have been active in trying to influence MDL practice, such as Lawyers for Civil Justice (LCJ), the Duke Law Center for Judicial Studies' MDL Best Practices conferences and the Emory University School of Law's Institute for Complex Litigation & Mass Claims. DLA Piper lawyers are active in all of these organizations, as are many of our clients.
The Advisory Committee on Civil Rules created the MDL Subcommittee, headed by Judge Bob Dow, just over a year ago. Since that time, the Subcommittee has been quite active. The focus of the Subcommittee continues to evolve as members attend conferences sponsored by institutions and judicial agencies such as George Washington, Emory, Duke, Lawyers for Civil Justice, the Judicial Panel on Multidistrict Litigation and the Federal Judicial Center, among others.
Topics from the Subcommittees work that received the most attention at the November 1 hearing included (1) "winnowing unsupportable claims" earlier in the MDL process; (2) interlocutory appellate review; and (3) third-party litigation financing (TPLF). The Subcommittee also discussed Plaintiff Steering Committee (PSC) formation and diversity, bellwether trial selection and Lexecon concerns, as well as judicial oversight of the MDL settlement process.
Winnowing unsupportable claims. The "Field of Dreams" problem of MDL coordination ("build it and they will come") dominated the Advisory Committee's discussion during the morning session. Possible solutions raised for weeding out unsupported claims included heightened pleading requirements, emboldened Rule 11 treatment, Plaintiff and Defendant Fact Sheets and the use of filing fees to ensure plaintiffs' counsel engage in preliminary vetting before filing cases in an existing MDL. Topics flagged for further research included surveying MDL judges on practices employed to "winnow out" unmeritorious claims earlier in the MDL process; surveying judges on the use of fact sheets; surveying judges on their application of the filing fees payment statute to MDLs; and surveying practitioners on their views of best practices for eliminating non-meritorious claims based on their experiences with MDLs.
Interlocutory appellate review. The Subcommittee continues to discuss whether appeal should be mandatory for certain types of rulings, such as jurisdictional decisions and summary judgment on Daubert or preemption grounds.
Preemption was discussed in particular as an area where a mandatory appeal could be helpful, particularly if judges were reluctant to certify their own rulings for appeal. Judge John D. Bates stated that the defense bar viewed this issue as one of inefficiency and imbalance because if summary judgment were to be granted, plaintiffs could appeal immediately, but where summary judgment is denied, defendants often have to wait years for final resolution.
The Committee suggested surveying judges about their experience with 1292(b) requests for interlocutory appeals and analyzing CM/ECF data for frequency and outcome of 1292(b) certification requests for various MDL types (eg, mass tort, securities fraud). The Committee contemplated two possible scenarios – an expansion of 1292(b) discretion to certify interlocutory appeals; or (2) a more expansive listing of the types of issues for which 1292(b) certification as it exists today might be appropriate.
TPLF. The Advisory Committee observed that TPLF disclosure could be a particularly "contentious issue," and the plaintiffs' bar engaged actively in today's discussion. The Advisory Committee commented on the diversity of funding scenarios that can arise and federal judges' frequent lack of knowledge as to TPLF arrangements in their own caseloads. The Subcommittee observed that a broad spectrum of disclosure models could be contemplated by a proposed rule, from Judge Dan Polster's model in the opioid litigation of disclosure in camera only, to wider discovery-based public disclosures found in the local rules of several jurisdictions, such as the northern district of California.
The Committee differed in opinions on the relative importance of advancing various interests, such as discovery, judicial recusal, settlement interests and ethical concerns in ensuring that third-party funders do not exercise control over the litigation directly or indirectly.
Bellwether trial selection, oversight of the settlement process and remand. In these areas, the Advisory Committee seemed disinclined to propose specific rule amendments, noting that transferee judges continue to craft individualized solutions to issues such as bellwether trial selection and engagement in the settlement process. The Advisory Committee noted that recent judicial training conferences have attempted to eliminate the misconception among judges that requesting remand of MDL cases is a "failure" and that global settlement of an MDL is always the preferred outcome. The Subcommittee also flagged for further consideration whether Rule 23-style heightened judicial obligations for approving settlement should be applied to non-class action MDL settlement as well.
The Advisory Committee's and MDL transferee judges' receptivity to rule-based solutions to all of these issues remains mixed. The Advisory Committee on Civil Rules, led by Judge Bates, questioned whether MDL-specific civil rules of procedure are needed and said that the flexibility of the MDL framework has allowed transferee judges to devise individualized solutions that could be provided to other MDL transferee judges through training programs. Professor Dan Coquillette (Reporter to the Standing Committee) noted the desirability of trans-substantive rulemaking instead of drafting rules to address specific case types such as mass torts. Judge Bates commented that, given the wide variety of case and fact scenarios that can be coordinated in a given MDL, a rule addition specific to MDLs may require such a high level of generality that it wouldn't be helpful.
On the other hand, one Advisory Committee member commented that it was "not a very satisfactory solution" to tell a new MDL transferee judge who has been assigned an MDL to "just call Judge Fallon" for advice on managing the docket. As a compromise, Rule 16 or Rule 26 amendments were suggested as options that might provide additional, optional guidance to MDL judges.
Judge David G. Campbell (Chair of the Standing Committee on Rules of Practice and Procedure) noted that the Advisory Committee should be aware that while MDL transferee judges might not foresee a need for particular rule amendments, several of these issues have generated significant public attention, including the emphasis on increasing the diversity of plaintiff leadership and trends in third-party litigation financing.
At this time, no FRCP rule changes are imminent while the MDL Subcommittee remains in "fact-finding mode." The Subcommittee acknowledged that additional empirical research is needed before it can provide more specific recommendations on any proposed rule amendments. As a next step, the Federal Judicial Center (the research and education division of the federal judiciary), possibly in conjunction with the Judicial Panel on Multidistrict Litigation (JPML) staff, likely will embark on this empirical research.
We remain committed to active engagement in public discussions and conferences that involve Subcommittee members and MDL transferee judges, and we will continue to provide regular updates as the MDL Subcommittee's work progresses.