By Gerald J. Maatman, Jr., Jennifer A. Riley, and Derek S. Franklin
Duane Morris Takeaways: On June 4, 2024, the U.S. Judicial Conference Committee on Rules of Practice and Procedure (“Committee”) approved additions to Rule 16.1 of the Federal Rules of Civil Procedure to address case management in multidistrict litigation proceedings (“MDLs”). The additions to Rule 16.1 provide a framework for initial management of MDLs by instructing judges to: (1) schedule an initial case management conference; (2) order the parties to submit a pre-conference report; and (3) enter an initial case management order after the conference. Pending judicial and congressional approval, Rule 16.1 will mark the first formal guidance specifically addressing MDL procedures and will allow for more efficient and merits-driven MDL case management.
The Committee’s procedural rules are required reading for corporations embroiled in MDL proceedings.
Background
According to 2023 federal court data, more than 70% of federal civil cases are part of a multidistrict litigation. Many of those proceedings are consolidated class actions. Yet, as of now, there are no procedural rules specifying how judges should manage MDL cases.
To address that issue, the Committee on Civil Rules formed an MDL Subcommittee in 2017 to explore possible additions to the Federal Rules of Civil Procedure concerning MDLs.
Proposal Of Rule 16.1 For Public Comment
In August 2023, the MDL Subcommittee published a proposed draft of Rule 16.1 for public comment. While the Rule aimed to address concerns from plaintiffs’ and defense attorneys, it drew considerable feedback from both sides.
For example, defense attorneys called for the proposed Rule to be more stringent in weeding out frivolous claims by mandating — rather than merely permitting — initial exchanges of information by the parties. On the other hand, some plaintiffs’ attorneys’ submitted comments arguing there was no need for the Rule altogether, and that it would hinder judges’ ability to take an individualized approach to their cases.
Commenters on both sides also voiced concerns about language in the proposed Rule designating a “coordinating counsel” to work with MDL litigants in the early stages of cases.
Approval Of Rule 16.1
In April 2024, the MDL Subcommittee approved a revised version of Rule 16.1 reflecting a compromise among those participated in the public commenting process. The revised Rule directs MDL judges to: (i) schedule an initial management conference; (ii) order the parties to submit a pre-conference case management report; and (iii) enter an initial case management order after the conference.
On June 4, 2024, the Committee voted in favor of submitting the Rule for final approval by the U.S. Supreme Court and for transmittal to Congress.
Heeding the feedback of defense counsel who criticized the lack of mandatory language in the proposed Rule, the approved revisions make it a requirement for the parties to prepare a pre-conference report “unless the court orders otherwise.”
The updated Rule also removes the hotly-contested proposed language that would have enlisted a “coordinating counsel” to assist MDL litigants with the initial case management conference and pre-conference report. Instead, Rule 16.1 will allow transferee judges to deal with leadership appointments based on the particular needs of each case.
The date of May 1, 2025 is the target deadline for adoption of Rule 16.1 by U.S. Supreme Court and transmittal to Congress. If those requisite steps occur, the Rule will take effect on December 1, 2025.
Takeaways For Companies
Rule 16.1 is set to become the first federal procedural rule directly addressing MDL procedures.
While it may not confer radical changes that some public commenters sought, the Rule is a concrete and unprecedented step, nonetheless, toward establishing a consistent initial roadmap in MDL cases. It will also act as an added safeguard against meritless MDL claims by requiring more transparency early in the litigation process.
Corporate counsel should take note of the pending adoption of Rule 16.1 to be more equipped to effectively handle MDLs, while continuing to monitor the Rule’s status as it heads to Congress and the U.S. Supreme Court to receive the final “green light.”