On March 28, 2023, the Advisory Committee on Civil Rules (Committee) convened in West Palm Beach, Florida, to discuss a variety of proposed amendments to the Federal Rules of Civil Procedure, including a new rule that would provide guidance about initial case management procedures in multidistrict litigation (MDL).
Appointed by the chief justice of the United States, the Committee’s membership includes federal and state judges, law professors, and practitioners from the plaintiff and defense bar as well as the federal government. The Committee is tasked with studying the federal rules and evaluating proposed changes to those rules. The Committee proposes amendments and rules changes for the Standing Committee on Rules of Practice and Procedure, which in turn makes recommendations to the United States Supreme Court. The Supreme Court has ultimate authority to promulgate rules amendments pursuant to the Rules Enabling Act.
Much of the Committee’s efforts this week were directed to a proposed Rule 16.1, which would address initial case management procedures in MDLs. The rule is designed to address concerns expressed by judges and practitioners alike about the lack of guidance in place for structuring and launching MDL proceedings — particularly early case management procedures.
The Committee first began considering rulemaking around MDL procedures in 2017. Now, after years of meetings, debate and proposals, the Committee approved a draft Rule 16.1 for publication to the Standing Committee and public comment — a significant step on the path toward adoption as a federal rule.
The Committee members emphasized the flexible nature of the proposed Rule 16, describing it as a practical “framework,” a “recipe” for successful case management and a “cafeteria” of case options. Through the process of soliciting the views of transferee judges and others, the Committee coalesced around the idea that MDL procedures did not call for a one-size-fits-all prescription for case management, but rather required a dynamic approach that empowered transferee courts and the parties with the freedom to apply the rule to fit each case’s unique needs.
That proposal has practical appeal. After all, no two MDL proceedings are alike, and a rule that provides needed structure in one case could equally impose unnecessary burdens in another. The Committee’s goal, therefore, is not to overly prescribe procedures that the transferee court and parties must undertake, but to provide guidance that will set the MDL process on the right foot toward productive litigation and, ultimately, resolution — whatever that resolution looks like.
To that end, the proposed rule states that the transferee court in an MDL proceeding “should” hold a case management conference and “should” order the parties to prepare a report that “must” address any issue requested by the transferee court.
After that, the rule sets out a series of factors that, in the Committee’s view, may aid the transferee court and the parties in the case planning and management process. These are not hard-and-fast requirements. Instead, the proposed Rule 16.1 states that the transferee court and parties “may” consider a number of factors, including the appointment and structuring of leadership counsel, the identification of key legal and factual issues, the early exchange of information about the factual bases for claims, and whether to consider measures to facilitate settlement. The proposed rule also provides that the transferee court may designate coordinating counsel to aid in the initial case management process and prepare the report.
While the Committee recognizes the usefulness of guidance regarding MDL procedures, points of disagreement remain. Chief among them is a concern that Rule 16.1 as currently proposed operates more as a series of best practices — providing that the court “may,” but not “must,” address factors — which would make Rule 16.1 unique among federal rules. Some Committee members also expressed concern that the Advisory Notes accompanying the proposed rule provided more robust guidance than Rule 16.1 itself and threatened to overshadow the rule in practical application.
Despite these concerns, the Committee appears to be in agreement that even with considerable leeway in application, Rule 16.1 adds value by encouraging both the court and the parties to anticipate and plan for issues that frequently (but not always) arise in MDL proceedings. The Committee thus unanimously approved the revised Rule 16.1 for publication.
While the vote of the Committee to approve the rule is significant, Rule 16.1 faces a lengthy and circuitous road to adoption. From here, the public will have the opportunity to provide comments on the proposed rule. We can expect considerable input from all corners: the judiciary, academia, practitioners and court observers. The Committee will review these comments, and they will almost certainly impact and shape the substance of the proposed Rule 16.1 — perhaps even to the point of rendering it unrecognizable from its current form.
Whatever the final outcome, the focus on rule innovation for MDL procedures is welcome, although in this author’s view, the Committee could go further with some of its prescriptions for early assessment of claims (a topic to be explored in a future article). At almost 20 years old, the Manual of Complex Litigation — one of the few authoritative sources on MDL practice — is showing its age and is going through its own revision process. And with the emergence of MDL as a predominating procedure in federal practice — MDLs account for somewhere between a third and a half of all federal cases — the need for practical rulemaking and guidance is at its apex.
We will continue to follow the Committee process, as well as the evolution of proposed Rule 16.1, and will provide updates on material developments.