New Federal Rule of Civil Procedure for MDLs Approved by Advisory Committee

Earlier this month, the Judicial Conference's Advisory Committee on Civil Rules unanimously approved a proposed new rule to the Federal Rules of Civil Procedure to address case management of multidistrict litigation ("MDL"). The rule is the first addition to the Federal Rules focused on MDLs, and it reflects an attempt to suggest a nationwide approach to MDL case management that tracks approaches to case management that MDL judges have often followed in practice while leaving MDL judges discretion to depart from the suggested procedures depending on the needs of a particular case.

The approved version of proposed Rule 16.1 would require courts to schedule an initial case management conference, order the parties to file a case management statement, and enter an initial management order.

Proposed Rule 16.1(b) also identifies a range of topics that the case management statement and initial management order should address, though it preserves' courts discretion to alter these requirements. The default topics include:

• whether a leadership council should be appointed and, if so, the structure of such a council and the timing and procedure for selecting it;
• a schedule for additional case management conferences;
• a procedure for managing the direct filing of new actions in the MDL;
• whether consolidated pleadings should be prepared; and
• how and when the parties will exchange information about the factual bases for their claims and defenses.

Companies may find comfort in the advisory committee notes that accompany the proposed rule, which recognize the problem that the creation of an MDL can lead to the assertion of a high number of plainly unmeritorious claims. The notes acknowledge that "some claims and defenses have been asserted without the inquiry called for by Rule 11(b)," recognize that "an early exchange of information about the factual bases for claims and defenses can facilitate efficient management" such as the exchange of "fact sheets," and observe that the court could "find it appropriate to employ expedited methods to resolve claims or defenses not supported after the required information exchange." The notes also give defendants ammunition to argue that some issues "should be addressed early in the proceeding (e.g, jurisdiction, general causation, or preemption)" rather than in the ordinary course of a drawn-out MDL.

The proposed rule must still be approved by the Committee on Rules of Practice and Procedure, the Judicial Conference, and the Supreme Court, as well as undergo review by Congress. As a result, it is unlikely to take effect before at least the end of 2025.