70% of Federal Civil Cases Are in MDLs as of Year End, FY21
Continues Trend of Increasing Concentration of the Civil Docket in MDLs
LCJ Renews Call for Rules for MDLs
WASHINGTON, D.C. – April 13, 2022 – New data from the Judicial Panel on Multidistrict Litigation (JPML) and the United States Courts, analyzed by Lawyers for Civil Justice (LCJ), shows that over 70% of the federal civil caseload (391,953 cases out of 559,653 federal civil cases) resides in Multidistrict Litigations (MDLs) as of the end of fiscal year 2021 (FY21). Over the past decade, there has been a rapid rise in the percentage of the civil caseload in MDLs, an increase in concentration of 142% since FY12.
This large and growing concentration of civil cases in MDLs comes as the Advisory Committee on Civil Rules continues to evaluate whether the Federal Rules of Civil Procedure (FRCP) should be updated to ensure that they achieve their stated purpose of applying to all federal civil cases to promote consistency across all federal courts. Rule 1 of the FRCP states that the role of the rules is to “govern the procedure in all civil actions and proceedings in the United States district courts.”
Yet according to an updated infographic released by LCJ, there are at least 8 rules in the FRCP that address the vetting of cases and/or their dismissal at early stages if they are not adequately pled that are not applied in many MDLs, especially those with large volumes of cases. Moreover, while MDLs have come to dominate the civil docket, MDLs are not mentioned in the FRCP. No rules have been adopted or amended to address the unique challenges posed by the large volume of MDL cases. The result, according to LCJ, is that in many MDLs as many as a third or more of the cases in the MDL have been found to lack evidence necessary to support their claims, and most MDLs operate under a myriad of improvised or experimental procedures that don’t ensure consistency or transparency and have contributed to a lack of confidence on all sides.
“This dramatic increase in the percentage of federal civil cases in MDLs is more than a warning sign that MDLs play an outsized role in our civil justice system; it is also a call to action,” said Alex Dahl, LCJ’s general counsel. “It is time for meaningful amendments to the FRCP that address the unique procedural challenges in MDLs and provide MDL courts and parties with consistent, fair and predictable rules -- just like in all other civil cases.”
“LCJ is calling for amendments that would incorporate MDLs into the FRCP,” continued Dahl. “We continue to urge the Committee to restore much-needed balance in MDL proceedings and fulfill the FRCP’s promise of providing fair presumptive procedures by moving forward with LCJ’s proposals, which would fill the early vetting gap and fix the appellate review roadblock.”
LCJ has long advocated for amendments to the FRCP that would bring MDLs within the Rules, citing a number of areas where the current Rules are inefficient or ineffective. These include:
• Regular procedures for vetting the merits of claims are unworkable in many MDLs given the number of claims. Even the experiments with a “census” effort to gather information currently taking place in three MDLs are not designed to require plaintiffs’ counsel to conduct basic due diligence before filing or to provide the early vetting that is needed, despite the fact that the census experiments arose from discussions about the lack of early vetting in MDLs.
• Appellate review is very rare and unbalanced, which can lead to needlessly lengthy and inefficient MDL proceedings. As a single dispositive ruling may apply to most, if not all, cases in an MDL, timely appellate review is needed to ensure “just, speedy and inexpensive” adjudication.
• While third-party litigation funding is not unique to MDLs, reports suggest it is increasingly common in these consolidated proceedings. Disclosure of contingent financing would benefit MDLs (and the civil justice system overall) by mitigating conflicts, providing transparency to courts and parties, and preventing control or influence by non-parties.
LCJ is also calling on the Civil Rules Committee to conduct a thorough assessment of the census experiments now that these processes have been in place for some time, including in two of the largest MDLs (3M earplug and Zantac litigations), and before they potentially become a common practice in MDLs. LCJ believes that the Committee should determine:
• Whether the census process furthers the aims of early vetting by providing incentives for plaintiffs’ counsel to conduct basic due diligence into their cases before filing; and
• Whether the census process under which courts purport to take jurisdiction over unfiled claims risk institutionalizing an unauthorized “MDL exception” to the FRCP by excusing compliance with the basic requirements of pleading, disclosure, and discovery that apply in all other civil cases. LCJ is concerned that the census process is contributing to the ad hoc or extra-judicial management of MDLs through such practices as waiving filing fees, not requiring the formal filing of claims, and ignoring pleading standards on MDL dockets.
As part of its analysis of the FY21 data, LCJ also released an infographic highlighting the upswing in federal civil cases in MDLs.
For more information on Lawyers for Civil Justice’s proposals to bring fairness, clarity and consistency to all civil cases, please visit Rules4MDLs.com.