Rule on Multidistrict Litigation’s First Steps Goes Into Effect

A new federal rule governing the first steps for multidistrict litigation is set to take effect Monday, the result of years of debate over the measure and what it should include.

Multidistrict litigation now makes up well over half of all federal civil cases, with lawsuits that address product liability and other topics consolidated before one judge to avoid them being filed in different courts and resulting in potentially different pretrial rulings. The new rule, 16.1 under the Federal Rules of Civil Procedure, is meant to give judges and parties a framework to get those cases off the ground, while still giving them the chance to modify them as needed for each case.

Those opening steps include an initial management conference to figure out pretrial proceedings. The rule also says parties should provide a report ahead of that conference to lay out their views on whether leadership counsel should be appointed in the case, and if so, what their roles should be.

Parties should also tell the court their initial views on discovery in the litigation, how parties will share information about the factual bases behind their arguments, and the main factual and legal issues that are likely to come up, the rule says.

Some lawyers told Bloomberg Law they had concerns about earlier drafts of the rule, saying too much rigidity would hurt the MDL process by forcing courts to follow steps that don’t fit all cases. The Judicial Conference’s Committee on Rules of Practice and Procedure unanimously approved a version that its authors said was meant to be adaptable.

“Not all MDL proceedings present the management challenges this rule addresses, and, thus, it is important to maintain flexibility in managing MDL proceedings,” reads the committee note attached to the rule, which gives additional guidance to judges interpreting it.

The judiciary’s policymaking body—the Judicial Conference—and later the Supreme Court approved the rule. It was among a slate of rule changes sent to Congress, which permitted the measures to go into effect.

A draft of the rule was presented for public comment in 2023, but got pushback from plaintiffs’ attorneys over a provision that said judges could appoint “coordinating counsel” to deal with logistics in the case. Drafters dropped the language after that testimony.

Some plaintiffs’ lawyers also testified that they thought too many topics were included in the list of items that could be addressed at the initial hearing. The advisory committee drafting the rule said it’s not meant to serve as a mandatory agenda that requires a view on each listed issue.

Class action lawyers also told Bloomberg Law the rule seemed focused more on mass tort MDLs rather than their cases, which commonly involve data breaches, privacy, and antitrust issues.

The rule has its supporters. Implementing initial steps in the cases gives a pathway for finding and dismissing claims that don’t belong in the litigation, said Alex Dahl, general counsel for the advocacy group Lawyers for Civil Justice, which has pushed for the new MDL rule.

“This rule should strongly discourage the filing of meritless claims and give courts and parties an effective mechanism for identifying and dismissing them at the early stages of a new MDL,” Dahl said in a statement.