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 LCJ filed with the Advisory Committee On Civil Rules in August of 2017 urging MDL reforms, please click below.  

REQUEST FOR RULEMAKING to the ADVISORY COMMITTEE ON CIVIL RULES RULES. FOR “ALL CIVIL ACTIONS AND PROCEEDINGS”: A CALL TO BRING CASES CONSOLIDATED FOR PRETRIAL PROCEEDINGS BACK WITHIN THE FEDERAL RULES OF CIVIL PROCEDURE - August 10, 2017

In November of 2017, the Advisory Committee on Civil Rules voted to form a subcommittee to examine the need to amend the FRCP to ensure their application in MDL cases. LCJ continues to follow this process as it moves forward and filed another comment on Friday, April 6, 2018 asking the Advisory Committee not to shy away from its duty to ensure the effective administration of justice in MDL cases despite pressure to maintain the status quo.  
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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:​

  • “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.
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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.

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