Stephen McConnell, left, and Dillon Smith, right, of Reed Smith. Courtesy photos
The judicial conference committee on rules of practice and procedure (committee) has recently proposed the addition of Rule 16.1 to the Federal Rules of Civil Procedure (FRCP). Proposed Rule 16.1 seeks to address concerns regarding case management in multidistrict litigation proceedings (MDL). The proposal of Rule 16.1 poses the question of whether there are serious problems afflicting MDL procedures. And if so, is proposed Rule 16.1 the solution?
What Is an MDL?
An MDL is a type of civil procedure used in U.S. federal courts to coordinate and consolidate the pretrial proceedings of duplicative civil actions. Several states, such as California, provide for similar coordination proceedings. An MDL typically involves the consolidation of thousands of individual claims against a handful of defendants. As of writing, MDLs make up more than 50% of pending federal civil cases. Nonetheless there is currently no FRCP that uniformly governs practice and procedure in MDLs. Instead, courts have relied upon ad hoc case management controls, such as the use of master and short-form complaints. This reliance on ad hoc procedures has led to practices in MDLs that vary significantly and are untethered to any FRCP. The varying and improvisatory nature of MDL practice has led some to characterize the MDL process as the “Wild West.”
