Protracted MDLs bench-bar leadership Conference

Protracted Actions in MDLs bench-bar leadership Conference

Co-Hosted by the Cleveland State University College of Law

June 13-14, 2024

On June 13-14, 2024, plaintiff and defense lawyers at the Center’s bench and bar leadership conference at the Cleveland State University College of Law left their partisan hats at the door and worked together with ten federal judges to find ways expediting the disposition of actions languishing in MDLs. They are to be congratulated for their public service.

New Fed. R. Civ. P. 16.1, which takes effect on December 1, 2025, requires parties to address, including to suggest, practices and procedures facilitating the resolution of actions and proceedings in MDLs. The new rule provides an ideal vehicle to put into practice the many good ideas raised at the conference. The Center plans to issue draft best practices for public comment implementing the new rule, which will take into account the excellent practices proposed at the conference as well as those that will be raised at the Center’s upcoming Ken Feinberg MDL roundtable summit on August 8, 2024, at Northwestern University School of Law.

Many practices were proposed at the conference to facilitate the resolution of actions and proceedings, which parties may include in their written report at the Rule 16.1 initial-management conference for the court’s consideration, including recommendations that:

the parties should request the court to appoint a recalled magistrate judge if the district’s magistrate judges are otherwise unavailable (Administrative Office of United States Courts should regularly provide a list of recalled magistrate judges to the JPML for the JPML to maintain a pool of recalled magistrate judges interested in MDL appointments);
the court should encourage, and defendant lawyers agree to respond to, early Rule 34 discovery requests for matter that is obviously relevant, including FDA reports, NDA agreements, and previously produced discovery in other related actions;
the court should establish a separate settlement track early in the proceedings without the defendant conceding the merits of the MDL;
the court should post information on mass-tort MDLs, including significant rulings, on its website under “cases of interest,” instead of solely posting a link to PACER, which is inconvenient for many interested individuals;
the parties should propose a central-exchange platform to collect information in the MDL, which can be mined and used for many purposes applying new technologies, including to group similar actions and model valuations, managed by an experienced vendor e.g., Rubris Inc.;

the court should consider delaying submission of fact sheets pending a prompt ruling on a dispositive issue, e.g., preemption;
the court should reappoint special masters annually and provide the parties an opportunity to comment, particularly when circumstances have changed since the original appointment;
the court should consider requiring clients to attend certain status conferences;
the court should require the plaintiff steering committee to specify the responsibilities of each member;
the court should require payment of the filing fee for individual tag-along actions directly filed in the MDL and deny requests to aggregate actions for filing-fee purposes;
the court should require defense and plaintiff lead counsel to work together and develop criteria for determining whether a filing is likely frivolous and submit proposed practices to address such filings early to prevent loss of sunk costs;
plaintiff lawyers should form a separate vetting committee or designate the plaintiff steering committee to apply criteria to individual actions;
defense lawyers should informally advise plaintiff steering committee or other vetting committee of filings that raise suspicions that an action may not have satisfied criteria;
parties should add boxes to fact sheets (defense and plaintiff) and check either box indicating whether factual contentions in claim or defense have evidentiary support or “will likely have evidentiary support after a reasonable opportunity for further investigation or discovery”;
parties should agree on time limits on when reasonable opportunity for further investigation or discovery has expired, e.g., 6, 12, 18 months, except for exceptional circumstances; and
the court should assist the parties in their efforts to police frivolous filings by notifying parties of the court’s intent to summarily sanction a law firm for filing a frivolous action “limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated” in compliance with Rule 11(c)(4).

To be clear, the Center does not speak nor act on behalf of the judiciary or any individual judge, but the Center does regularly talk to judges, who suggest innovative solutions, many of which were raised at the conference, that deserve consideration by and feedback from practicing lawyers.

CHATHAM HOUSE RULE

The conference will be held under the Chatham House Rule: “[P]articipants are free to use the information received, but neither the identity nor the affiliation of the speaker(s), or that of any other participant, may be revealed.”

Registration

The registration fee for the conference is $1,200, which includes conference materials, a continental breakfast, coffee breaks, lunch, a group reception on Thursday evening, and grab-and-go snacks at adjournment. Two or more lawyers registering from the same law firm receive major discounts (single registrant – $1,200; second registrant – $950; and third and each additional registrant – $800). In-house and company discounts available.

CLE

The New Jersey state bar has approved CLE credit for 535 minutes for attending the conference.

Conference Details

Agenda

PROTRACTED ACTIONS IN MDLS BENCH-BAR LEADERSHIP CONFERENCE

Cleveland State University College of Law (June 13-14, 2024)

Thursday, June 13

7:45 am – 8:45 am: Continental Breakfast — Atrium

8:45 am – 9:00 am: Welcoming Remarks

John Rabiej, Founder & President, Rabiej Litigation Law Center

9:05 am – 10:15 am: Panel 1 – Status and Effects of Protracted Actions in MDLs

Moderator: Professor Doron Kalir, Cleveland State University College of Law

Hon. Karen Caldwell, Chair, Judicial Panel on Multidistrict Litigation
John Rabiej, Rabiej Litigation Law Center
Jennifer Greenblatt, Goldman Ismail Tomaselli Brennan & Baum LLP
Palmer Lambert, Pendley, Baudin & Coffin. LLP

10:15 am – 10:30 am: Break

10:30 am – 12:00 pm: Panel 2 – Causes of Delay – Defense’s Perspective

Moderator: Professor Michael Borden, Cleveland State University College of Law

Brian Jackson, Butler Snow LLP
Francis Citera, Greenberg Traurig LLP
Peter Rotolo, Chaffe McCall LLP
Shannon McClure, Reed Smith LLP
Robert Friedman, King & Spalding LLP
Geoffrey Coan, Hinshaw & Culbertson LLP

12:00 pm – 1:30 pm: Lunch (School Atrium) — Rubris Inc., Sponsor

1:30 pm – 3:00 pm: Panel 3 – Causes of Delay – Plaintiffs’ Perspective

Moderator: Professor Doron Kalir, Cleveland State University College of Law

Alyson Oliver, Oliver Law Group PC
Syreeta Poindexter, Babin Law LLC
Charlie Stern, Nachawati Law Group
Andre Mura, Gibbs Law Group LLP
Ashlie Sletvold, Peiffer Wolf Carr Kane Conway & Wise LLP
James Bilsborrow, Weitz & Luxenberg PC
Hon. Nannette Brown, Eastern District of Louisiana

3:00 pm – 3:15 pm: Break

3:15 pm – 4:45 pm: Panel 4 – Causes of Delay – Magistrate Judges’ and Special Masters’ Perspective

Moderator: Professor Michael Borden, Cleveland State University College of Law

Jen Alpert, Rubris, Inc.
Megan Pizor, Litigation Management
Dan Balhoff, Perry, Balhoff, Mengis & Burns, LLC
Hon. Michael North, Eastern District of Louisiana
Hon. Gary Jones, Northern District of Florida
Hon. Bernice Donald, Sixth Circuit of Court of Appeals (ret.); Burch, Porter & Johnson PLLC

5:00 pm: Reception — Atrium

6:00 pm: Dinner (Atrium) — Litigation Management, Inc., Sponsor

Friday, June 14

9:00 am – 10:30 am: Panel 5 – Causes of Delay – Judges’ Perspective

Moderator: Professor Doron Kalir, Cleveland State University College of Law

Hon. David Proctor, Northern District of Alabama
Hon. Dan Polster, Northern District of Ohio
Hon. Nancy Rosenstengel, Southern District of Illinois
Hon. Freda Wolfson, District of New Jersey (ret.); Lowenstein Sandler LLP

10:30 am – 10:45 am: Break

10:45 am – 12:30 pm: Panel 6 – Potential Solutions, including: Setting Deadline for Settlements; Setting Deadline for Filing Tag-Along Claims; and Postponing JPML Centralization Decision until Mass Tort Reaches Maturity

Moderator: Professor Michael Borden, Cleveland State University College of Law

Paul LaFata, Dechert LLP
Bradley Honnold, Goza & Honnold, Trial Lawyers
Hon. Eduardo Robreno, Eastern District of Pennsylvania (ret.); McCarter & English LLP
Leslie LaMacchia, Bell Legal Group
Steve Bennett, Faegre Drinker Biddle & Reath LLP
Stephen McConnell, Reed Smith LLP

12:30 pm: Adjournment (Grab-and Go Snacks)

Panelists

PANELISTS’ BIOS

MODERATORS

Professor Borden, Michael — Cleveland State University College of Law
Professor Kalir, Doron — Cleveland State University College of Law

PANELISTS

Hon. Brown, Nannette — Eastern District of Louisiana
Hon. Caldwell, Karen — Chair, Judicial Panel on Multidistrict Litigation
Hon. Donald, Bernice — Sixth Circuit of Court of Appeals (ret.); Burch, Porter & Johnson PLLC
Hon. Jones, Gary — Northern District of Florida
Hon. North, Michael — Eastern District of Louisiana
Hon. Polster, Dan — Northern District of Ohio
Hon. Proctor, David — Northern District of Alabama
Hon. Robreno, Eduardo — Eastern District of Pennsylvania (ret.); McCarter & English LLP
Hon. Rosenstengel, — Nancy Southern District of Illinois
Hon. Wolfson, Freda — District of New Jersey (ret.); Lowenstein Sandler LLP
Alpert, Jen — Rubris, Inc.
Balhoff, Dan — Perry, Balhoff, Mengis & Burns, LLC
Bilsborrow, James — Weitz & Luxenberg PC
Citera, Francis — Greeenberg Traurig LLP
Coan, Geoffrey — Hinshaw & Culbertson LLP
Friedman, Robert — King & Spalding LLP
Greenblatt, Jennifer — Goldman Ismail Tomaselli Brennan & Baum LLP
Honnold, Bradley — Goza & Honnold, Trial Lawyers
LaFata, Paul — Dechert LLP
Lambert, Palmer — Pendley, Baudin & Coffin LLP
LaMacchia,Leslie — Bell Legal Group
McClure, Shannon — Reed Smith LLP
McConnell, Stephen — Reed Smith LLP
Mura, Andre — Gibbs Law Group LLP
Oliver, Alyson — Oliver Law Group
Pizor, Megan — Litigation Management Inc.
Poindexter, Syreeta — Babin Law LLC
Rabiej, John — Rabiej Litigation Law Center
Rotollo, Peter — Chaffe McCall, LLP
Sletvold, Ashlie — Peiffer Wolf Carr Kane Conway & Wise LLP
Stern, Charlie — Nachawati Law Group

Materials

New Normal

Statistical Chart — Total Numbers of Individual Actions Filed in MDLs Annually Since 1998; Rabiej Litigation Law Center (Download)
Federal Case Management 5-Year Per Judgeship Statistics, including Median Time to Disposition, Administrative Office of United States Courts (Download)
Median Disposition Times for 12-Month Period Ending March 31, 2023, Administrative Office of United States Courts (Download)
Median Disposition Times for 12-Month Period Ending March 31, 2002, Administrative Office of United States Courts (Download)
Dissenting Opinion in In Re American Continental Corp., v. Weiss, 102 F.3d 1524, 1540 (9th Cir. 1996), which was affirmed in Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998) (rationale for 28 U.S.C. § 1407 (Download)
Roundup MDL NO. 2741, Order Re: June 6 Hearing (June 4, 2024) (raising concerns that law firm took on more cases than it could competently handle) (Download)

Statistical Data

Table — Pending Actions in MDLs Seven or More Years Old; Rabiej Litigation Law Center (Download)
Table — Percentage of Total Actions Filed in First Five Years; Rabiej Litigation Law Center (Download)
Excel Spreadsheet — Number of Pending and Historical Actions in 86 Separate Product Liability MDLs, which Consist of or Had Consisted of 1,000 or More Actions, Antitrust MDLs, and Security-Data Breach MDLs Since 2012; Rabiej Litigation Law Center (Download)
Civil Justice Reform Act Tables 1, Summaries of Total Cases Pending Three or More Years, Administrative Office of United States Courts (Download)
2023 Litigation Statistics Series: Multidistrict Litigation, Bloomberg Law (2023) [Statement in Section 2 that about 1% of all civil actions (2,917 actions) during 2022 were consolidated into MDLs fails to account for nearly 58,000 actions directly filed in transferee courts.] (Download)
Analysis of Duration of Actions in 20 Closed Mega-MDLs and 28 Active Mega-MDLs; Rabiej Litigation Law Center (Download)
Lawyers for Civil Justice comments submitted to Advisory Committee on Civil Rules, identifying MDLs with large volume of unsubstantiated claims, pp.1-6 (February 16, 2024) (Download)
Data on Meritless Filings from Excerpts from Product Liability Advisory Council’s Comment on Proposed Rule 16.1 Submitted to Advisory Committee on Civil Rules on February 16, 2024 (Download)

Potential Solutions

A. 23 Widener Law Journal 97 (2013), Hon. Eduardo Robreno, The Federal Asbestos Product Liability, Multidistrict Litigation (MDL-875): Black Hole or New Paradigm? (Show-cause hearings leading to resolution of 171,278 asbestos actions in 36 months) (Download)

A-1. Comment on Rule 16.1 submitted by Bayer U.S. LLC challenging efficiency of show-cause hearings, pp. 3-4 (October 15, 2023) (Download)

B. In Re Bard IVC Filters Prod. Liab. Litig., MDL No. 2641, (D. Ariz. Aug. 20, 2019), Suggestion of Remand and Transfer Order (setting deadline for settlements before remanding) (Download)

B-1. Comparing Asbestos MDL and Bard IVC Filter MDL approaches, Rabiej Litigation Law Center (Download)

C. American Association for Justice comments submitted to Advisory Committee on Civil Rules, suggesting inactive docket to isolate possibly unsubstantiated claims, pp. 3-4 (February 15, 2024) (Download)

C-1. Hon. Casey Rodgers comments submitted to Advisory Committee on Civil Rules, cautioning that freely granting tolling agreements for claims filed in an inactive docket makes vetting claims difficult, p. 2 (February 13, 2024) (Download)

D. Lawyers for Civil Justice proposal to require an “early check into the most basic elements of the claims” submitted to Advisory Committee on Civil Rules (September 18, 2023) (Download)

E. Zimmerman, Adam, The Bellwether (Mediator) Settlement, 85 Fordham Law Review 2275 (2017) (Download)

F. Judicial Estimation of Value of Tort Actions in Mass-Tort Bankruptcy, Mass-Tort MDL Compendium of Guidelines and Best Practices, Rabiej Litigation Law Center (Download)

Registration

Regular Registration — $1,200.

Multiple Registrations —Two or more lawyers registering from the same law firm receive major discounts (single registrant – $1,200; second registrant – $950; and third and each additional registrant – $800).

In-House Counsel Discount —The registration fee for in-house counsel whose company does not provide a budget for continuing education and training is $250.

Please check the “Other Registration” box under “Registration Type” and insert the discounted fee amount.