Key Takeaways

• The Judicial Conference Committee on Rules of Practice and Procedure has approved for publication for public comment Rule 16.1, which addresses case management in multidistrict litigation (MDL) proceedings.
• The proposed Rule 16.1 provides guidance for both transferee courts and parties about early case management proceedings in MDLs, including the appointment of leadership, the early exchange of information and other case management tasks.
• The public comment period is open until February 16, 2024, allowing businesses and others to comment on the need for rulemaking; discuss challenges posed by the current absence of MDL-specific rules; and provide input on the proposed Rule 16.1.

There is big news in the world of multidistrict litigation: On August 15, 2023, the public comment period opened on a new proposed amendment to the Federal Rules of Civil Procedure specifically addressing case management in MDL proceedings.

The proposed Rule 16.1 represents the culmination of over five years of work by the Advisory Committee on Civil Rules to address growing demand for rules specifically addressing MDL practice and procedure. Rule 16.1 would set the expectation that after transfer from the Judicial Panel on Multidistrict Litigation, the transferee court would schedule an initial management conference to develop a management plan for pretrial activity in the MDL proceedings. As proposed, Rule 16.1 provides the transferee court with complete discretion on how to proceed with the creation of such a plan and what that plan should entail.

For example, the transferee court “may” (but is not required to) designate coordinating counsel to assist the court with conferences and to coordinate preparation of the management plan. And the transferee court may designate the specific topics the management plan should address, drawing from Rule 16 or the proposed Rule 16.1. In fact, Rule 16.1 allows the court and the parties to address any matter they see fit and suggests a number of topics including, to name just a few, identifying key factual and legal issues likely to come up in the MDL; “how and when the parties will exchange information about the factual bases for their claims and defenses”; and the likelihood of pretrial motions and how those should be addressed. The proposed Rule 16.1 – which its drafters described as a series of prompts for the parties and transferee court – is available in full here.

The public comment period on the proposed Rule 16.1 is open until February 16, 2024. Comments can be submitted at this link. The Advisory Committee on Civil Rules will also be holding a series of public hearings on the proposed rule, the first of which is in Washington, D.C., on October 16, 2023.

One of the challenges businesses and others can face in MDL proceedings is the absence of clear rules for transferee courts and parties to follow, particularly in the planning stages of the case. And many of the resources that do exist are either too general or too out of date to provide meaningful guidance and precedent in many complex MDLs. The public comment period therefore provides an important opportunity to weigh in on challenges experienced in MDLs; the need for appropriate rulemaking; and the strengths and weaknesses of the proposed Rule 16.1 in particular.

We expect significant public comment activity on this proposal. It is already clear that some think it does not go far enough, while others wonder if the subject matter of the proposed rule should be the subject of rulemaking at all. 

[View source.]