What is Proposed Rule 16.1?

In its current, revised form, Rule 16.1 outlines a framework for managing the start of MDL proceedings. The Rule instructs MDL judges to (1) schedule an initial management conference; (2) order the parties to submit a report in advance of the conference addressing various case management issues; and (3) enter an initial case management order after the conference. 

While the Advisory Committee unanimously approved the revised Rule 16.1, it will not take effect until at least December 1, 2025, pending further required approvals. 

What Changes Did the MDL Subcommittee Make to Proposed Rule 16.1?

The MDL Subcommittee issued a draft Rule 16.1 proposal in August 2023 and invited public comments through hearings and written submissions. With the exception of a few modest changes, the revised rule presented at the April 9 meeting otherwise kept the same structure and content as the August 2023 version with additional commentary in the Committee Notes.  The key modifications made in response to public comments include the following:

Removing “Coordinating Counsel” Role

One of the most hotly-contested provisions in the August 2023 version of proposed Rule 16.1 contemplated the discretionary designation of “coordinating counsel” before the initial management conference to (1) assist the court with the conference and (2) work with the parties to prepare for the conference and any report ordered under Rule 16.1. 

The “coordinating counsel” proposal was widely decried during the public hearings and in written comments submitted through February 2024. As the Chair of the MDL Subcommittee, Judge R. David Proctor, put it, it “landed like a flat musical note at a concert.” Numerous members of the plaintiffs’ bar raised concerns, including that it added unnecessary complexity and confusion to the MDL process. 

Moving forward, if Rule 16.1 takes effect, transferee judges will continue to deal with leadership appointments based on the needs of the particular MDL case without introducing a new role ahead of the initial case management conference. 

Requiring the Parties to Prepare a Report on Certain Topics “Unless the Court Orders Otherwise”

In a partial nod to numerous public comments complaining that the proposed Rule did not order MDL parties to do anything, the MDL Subcommittee revised the language in subpart (b) to require the parties to meet, prepare, and submit to the court a report before the initial management conference. The report “must” address certain enumerated topics “unless the court orders otherwise.”

The MDL Subcommittee’s revisions to Rule 16.1 also divide the matters to be addressed in the report into two tiers: one often requiring early court action, and the other not as exigent and therefore requiring only “initial views.” The first tier requires the parties’ views on (1) whether to appoint leadership counsel and if so, the timing and procedure for doing so, as well as the mandate of such counsel; (2) any previously entered scheduling orders; (3) a schedule for additional management conferences; (4) how to manage direct filings; and (5) whether related actions have been—or are expected to be—filed in other courts and whether to adopt coordination methods.

The second tier requires only “initial views,” therefore leaving space for leadership counsel to weigh in if appointed later and/or for the parties to provide further views after more experience with the evolution of the MDL proceeding. The matters to be addressed in the second tier include: (1) whether consolidated pleadings should be prepared; (2) how and when the parties will exchange information about the factual bases for the claims and defenses; (3) anticipated discovery; (4) any likely pretrial motions; (5) whether the court should consider any measures to facilitate resolution; (6) whether any matters should be referred to a magistrate or master; and (7) the principal factual and legal issues likely to be presented.

Other Minor Changes

Although not discussed at length at the April 9 hearing, the MDL Subcommittee’s revised Rule 16.1 further addressed some of the other public comments. For example, a few comments had raised concerns that Rule 16.1 should not supersede or contravene Rule 23(g) regarding interim class counsel for instances where class actions are included in an MDL proceeding. The updated Committee Note added a short paragraph regarding class counsel under Rule 23(g), specifically noting that Rule 16.1 does not displace Rule 23(g).

Other public comments expressed dissatisfaction with the overuse of the term “settlement” in the August 2023 proposed Rule, arguing that it would be premature to discuss settlement at the initial management conference. Some of these comments cautioned that the draft Rule improperly suggested that MDLs are a settlement tool, rather than their intended purpose as a means to manage and coordinate pretrial proceedings for large numbers of cases involving comparable facts and injuries. In the revised draft, the MDL Subcommittee decided to use the word “resolution” rather than “settlement.” They also explained that “resolution may be achieved by such means as early exchanges of information, expedited discovery, pretrial motions, bellwether trials, and settlement negotiations.” 

What Did Not Change about Proposed Rule 16.1?

Retaining the Rule’s Precatory Language

Under both the August 2023 and current proposed versions of Rule 16.1, transferee judges can tailor proceedings based on the specific circumstances of the matter before them, such as the number of actions and parties, type of case, and related state actions. In retaining the largely precatory language of the Rule, the MDL Subcommittee referenced the strong support from transferee judges, most notably Judge Charles Breyer, who has presided over more MDLs than any other judge, and Judge Casey Rodgers, who presided over one of the largest MDLs. Their support, and others from the judiciary, focused on the Rule’s discretionary language that provides flexibility for judges to manage MDLs as they see fit.

Foregoing Mandatory Claims Vetting

During the public comment period, several large companies and the defense bar very strongly advocated for a mandatory initial exchange of information, including each plaintiff’s standing and factual bases for his or her claims, in order to weed out frivolous claims early in the process, particularly those involving mass torts. Many of these commenters pointed to statistics regarding the number of meritless claims brought in MDLs. On the other hand, plaintiffs opposed these proposals as unnecessary, and members of the judiciary acknowledged that such vetting might come too early in the lifespan of an MDL.

Ultimately, the MDL Subcommittee chose to keep the language from the August 2023 proposed Rule 16.1 the same, which requires parties to state their initial views about “how and when the parties will exchange sufficient information about the factual basis for their claims and defenses.” However, they slightly modified the Committee Note to reiterate that Federal Rule of Civil Procedure 11—which requires attorneys to certify that their “factual contentions have evidentiary support or . . . will likely have evidentiary support after a reasonable opportunity for further investigation or discovery”—still applies in the context of MDL proceedings. The Committee Note then goes on to provide examples, such as “fact sheets” or “censuses,” as potential methods for early exchanges of information to facilitate case management. 

What Comes Next?

The approved Rule moves next to the Committee on Rules of Practice and Procedure to be reviewed during its June 2024 meeting. The target deadline for adoption by the Supreme Court and transmittal to Congress is May 1, 2025. As noted above, with the requisite approvals and absent congressional action, Rule 16.1 will take effect December 1, 2025. 

If it takes effect, Rule 16.1 would be the first rule to address MDLs. Although it will not radically change existing MDL procedure, transferee judges will have the benefit of a starting checklist of action items that they can modify as needed to address the unique circumstances of each MDL over which they preside. Similarly, counsel and clients will have guidelines as to what to expect ahead of the initial case management conference. Hogan Lovells has extensive experience with MDLs, and we will continue to monitor these developments and provide updates. 

Authored by Adam Levin, Laura Penaranda, and Jennifer Murray.