LCJ URGES MDL REFORM
According to Rule 1, the Federal Rules of Civil Procedure (FRCP), “govern the procedure in all civil actions and proceedings in the United States district courts.” It is widely known, however, that the FRCP do not govern key elements of procedure in many MDL cases, which now constitute 45 percent of the federal docket. The reason is straightforward: the FRCP no longer provide practical presumptive procedures in MDL cases, so judges and parties are improvising. A solution is needed, and LCJ is urging the Civil Rules Advisory Committee to undertake an effort to remedy this situation by bringing MDL cases back within the existing and well-proven structure of the FRCP. While some ad hoc procedures have more merit than others, they all share the same lack of transparency, uniformity and predictability. Many common practices also cause an unbalanced litigation environment by failing to provide protections inherent in the FRCP. To view the entire comment, please click here.
rule 23 amendments underway
LCJ also is committed to advocating LCJ consensus positions to achieve class action reforms. To that end, the LCJ Class Actions Committee has submitted four comments to the Rule 23 Subcommittee and three comments to the Civil Rules Advisory Committee, which may be viewed below.
After receiving considerable input from LCJ and others, the Rule 23 Subcommittee is proposing to proceed with developing potential rule amendments on the following topics:
The Committee has put the following three topics on hold: Ascertainability; Rule 68 and offers of judgement; and Settlement Class Certification. It has removed cy pres and issue classes from its agenda.
LCJ also submitted a ground-breaking empirical study demonstrating that no-injury class action cases resolved in the last decade resulted in approximately $4 billion worth of settlements and judgments, yet provided a mere 9 percent—or less—of that amount to class members. A link to that study may be found below.
The LCJ Class Actions committee plans to continue to remain engaged as the rule amendment process moves forward and the public comment period begins later this year.
Supporting Materials
After receiving considerable input from LCJ and others, the Rule 23 Subcommittee is proposing to proceed with developing potential rule amendments on the following topics:
- “Frontloading”
- Excluding “preliminary approvals” of class certification and orders regarding notice to the class about possible settlements from immediate appeal under Rule 23(f)
- Clarifying Rule 23(c)(2)(B) to state that Rule 23(e)(1) notice triggers the opt-out period
- Notice to unnamed class members
- Handling objections by class members to proposed settlements
- Criteria for judicial approval of class-action settlements
The Committee has put the following three topics on hold: Ascertainability; Rule 68 and offers of judgement; and Settlement Class Certification. It has removed cy pres and issue classes from its agenda.
LCJ also submitted a ground-breaking empirical study demonstrating that no-injury class action cases resolved in the last decade resulted in approximately $4 billion worth of settlements and judgments, yet provided a mere 9 percent—or less—of that amount to class members. A link to that study may be found below.
The LCJ Class Actions committee plans to continue to remain engaged as the rule amendment process moves forward and the public comment period begins later this year.
Supporting Materials
- LCJ Comment to the Civil Rules Advisory Committee entitled "Amending Rule 23: A Call For Much Needed Reform of Class Action Procedure" submitted October 3, 2016
- LCJ Comment to the Civil Rules Advisory Committee entitled "NINE PERCENT OF FOUR BILLION DOLLARS: NEW EMPIRICAL EVIDENCE THAT RULE 23 SHOULD BE AMENDED TO CURTAIL THE PROBLEMS OF “NO INJURY” CLASS ACTION CASES" - March 14, 2016
- LCJ Comment to the Civil Rules Advisory Committee regarding the Rule 23 Subcommittee’s proposals for possible Rule 23 amendments, and suggesting an additional amendment to limit “no injury” cases - November 3, 2015
- LCJ Thoughts on the Rule 23 Subcommittee's Ideas for Reform - October 9, 2015
- LCJ Brief as Amicus Curiae in support of Petitioner in Campbell-Ewald Company v. Jose Gomez submitted to the U.S. Supreme Court prepared by Andrew Trask and Matthew Fitzgerald at McGuire Woods
- LCJ Comment on Rule 23 Conceptual Sketches - April 7, 2015
- Repairing the Disconnect Between Class Actions and Class Members: Why Rules Governing "No Injury" Cases, Certification Standards for Issue Classes and Notice Need Reform - August 13, 2014
- To Restore a Relationship Between Classes and Their Actions: A Call for Meaningful Reform of Rule 23 to The Civil Rules Advisory and its Rule 23 Subcommittee on behalf of Lawyers for Civil Justice, Federation of Defense & Corporate Counsel, DRI- The Voice of the Defense Bar, International Association of Defense Counsel – August 9, 2013
