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Tuesday, August 20, 2019

Group seeks changes to MDL pleading requirements, cites 'unbalanced litigation environment'

By Olivia Olsen | Aug 29, 2017

WASHINGTON (Legal Newsline) – Lawyers for Civil Justice, a partnership of corporate attorneys, has submitted a request for amendment to the Advisory Committee on Civil Rules earlier this month.

The motion aims to adjust the current rules surrounding consolidated cases in pretrial proceedings (multidistrict or MDL) as outlined in the Federal Rules of Civil Procedure (FRCP). 

The presented issue in LCJ's Request for Rulemaking is that the FRCP currently does not govern procedures in MDL matters, which leaves many courts improvising and issuing orders without clear guidance or uniformity, it claims. 

As a result of the FRCP not dictating procedures or providing protections, an "unbalanced litigation environment" has prevailed, LCJ says.

LCJ hopes that uncertainty can be remedied. 

“In many MDL cases, there is no pretrial testing of claims because the existing FRCP mechanisms for doing so are not practical at a large scale,” the group writes in its Aug. 10 request

It goes on to list other failures in MDL proceedings, such as plaintiffs joining cases without complying with statutory requirements for filing a complaint and the fact that few MDL cases are able to receive an appellate review due to the FRCP not having a guide for how one should be conducted. 

Currently, several other agencies are acting to grant overhead to MDL cases, but their efforts are not viewed as enough by LCJ. The organization believes it is imperative for the FRCP to be used.

The LCJ lists in detail six ways in which it feels rules can be amended for the better.

First and foremost, the group hopes the advisory committee will consider master and individual complaints as pleadings, which is not currently the case in MDL proceedings. In regards to individual complaints, the LCJ requests that they be pled with “particularity” in consolidated cases as the standing guidelines do not adequately test merits of claims. 

A request was made to prohibit the aforementioned plaintiffs who don’t adhere to statutory requirements and whose claims lack jurisdiction from joining cases. Additionally, it suggests that plaintiffs in MDL proceedings be required to produce evidence to support their claims. 

Lastly, the group hopes the advisory committee will establish a confidential consent proceeding to eliminate “bellwether trials” and to create a pathway for an appeal.

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Lawyers for Civil Justice