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Bloomberg Law: “Multidistrict Litigation Rule Should Drive Merits-Based Results”

publication | March 7, 2024

In an article published by Bloomberg Law, Hollingsworth LLP partners Robert Johnston and Gary Feldon say the proposed Federal Rule of Civil Procedure 16.1 for managing multidistrict litigation could go further to push courts toward a merits-driven approach. The draft Rule 16.1’s endorsement of effective merits-driven case management principles is a major step forward, but the rule also needs to offer concrete guidance to MDL courts on implementing those principles.

Anticipated to go into effect on Dec. 1, 2025, the proposed Federal Rule of Civil Procedure 16.1 would be the first rule to address MDLs specifically and would govern MDLs’ critical initial case management phase. Despite its seminal endorsement of the merits-driven approach, draft Rule 16.1 doesn’t provide enough direction to MDL courts in how to implement that approach. Too many courts cling to the idea that the MDL court’s role is to push global settlements instead of engaging with the merits from the outset.

Rule 16.1 would be far more effective if the final rule instructed MDL courts to enter case management orders that:

  • Create affirmative obligations that all plaintiffs provide evidence of a prima facie claim so that MDL courts can identify non-meritorious cases to be cleaved off through merits decisions and Lone Pine orders;
  • Establish procedures for enforcing plaintiffs’ obligations to provide accurate, substantially complete plaintiff fact sheets and other “census” discovery; and
  • Set a schedule for the full lifecycle of the MDL, including remand of any unresolved cases, to ensure the litigation moves toward a conclusion.

Regardless of the precise language ultimately adopted, however, a new Rule 16.1 will represent an invitation to litigants to push for efficient and fair MDL case management.