Earlier this month, the Judicial Conference’s Advisory Committee on Civil Rules unanimously approved a proposed new rule to the Federal Rules of Civil Procedure to address case management of multidistrict litigation (“MDL”).  The rule is the first addition to the Federal Rules focused on MDLs, and it reflects an attempt to suggest a nationwide approach to MDL case management that tracks approaches to case management that MDL judges have often followed in practice while leaving MDL judges discretion to depart from the suggested procedures depending on the needs of a particular case.

The approved version of proposed Rule 16.1 would require courts to schedule an initial case management conference, order the parties to file a case management statement, and enter an initial management order. 

Proposed Rule 16.1(b) also identifies a range of topics that the case management statement and initial management order should address, though it preserves’ courts discretion to alter these requirements.  The default topics include:

  • whether a leadership council should be appointed and, if so, the structure of such a council and the timing and procedure for selecting it;
  • a schedule for additional case management conferences;
  • a procedure for managing the direct filing of new actions in the MDL;
  • whether consolidated pleadings should be prepared; and
  • how and when the parties will exchange information about the factual bases for their claims and defenses.

Companies may find comfort in the advisory committee notes that accompany the proposed rule, which recognize the problem that the creation of an MDL can lead to the assertion of a high number of plainly unmeritorious claims.  The notes acknowledge that “some claims and defenses have been asserted without the inquiry called for by Rule 11(b),” recognize that “an early exchange of information about the factual bases for claims and defenses can facilitate efficient management” such as the exchange of “fact sheets,” and observe that the court could “find it appropriate to employ expedited methods to resolve claims or defenses not supported after the required information exchange.”  The notes also give defendants ammunition to argue that some issues “should be addressed early in the proceeding (e.g, jurisdiction, general causation, or preemption)” rather than in the ordinary course of a drawn-out MDL.

The proposed rule must still be approved by the Committee on Rules of Practice and Procedure, the Judicial Conference, and the Supreme Court, as well as undergo review by Congress.  As a result, it is unlikely to take effect before at least the end of 2025.

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Photo of Amy Heath Amy Heath

Amy Heath focuses on complex commercial litigation and class actions. She has handled matters involving contract, privacy, consumer protection, fraud, unfair competition, and intellectual property claims. She also has experience with internal investigations. Before practicing law, Amy served as an intelligence analyst.

Photo of Andrew Soukup Andrew Soukup

Andrew Soukup has a wide-ranging complex litigation practice representing highly regulated businesses in class actions and other high-stakes disputes. He has built a successful record of defending clients from consumer protection claims asserted in class-action lawsuits and other multistate proceedings, many of which…

Andrew Soukup has a wide-ranging complex litigation practice representing highly regulated businesses in class actions and other high-stakes disputes. He has built a successful record of defending clients from consumer protection claims asserted in class-action lawsuits and other multistate proceedings, many of which were defeated through dispositive pre-trial motions.
Andrew is co-chair of the firm’s Class Action Litigation practice group.

Andrew has helped his clients achieve successful outcomes at all stages of litigation, including through trial and appeal. He has helped his clients prevail in litigation against putative class representatives, government agencies, and commercial entities. Representative victories include:

  • Delivered wins in multiple nationwide class actions on behalf of large financial companies related to fees, disclosures, and other banking practices, including the successful defense of numerous lenders accused of violating the Paycheck Protection Program’s implementing laws, which contributed to Covington’s recent recognition as a “Class Action Group Of The Year.”
  • Successfully defending several of the nation’s leading financial institutions in a wide variety of litigation and arbitration proceedings involving alleged violations of RICO, FCRA, TILA, TCPA, FCBA, ECOA, EFTA, FACTA, and state consumer protection and unfair and deceptive acts or practices statutes, as well as claims involving breach of contract, fraud, unjust enrichment, and other torts.
  • Successfully defended several of the nation’s leading companies and brands from claims that they deceptively marketed their products, including claims brought under state consumer protection and unfair deceptive acts or practices statutes.
  • Obtained favorable outcomes for numerous clients in commercial disputes raising contract, fraud, and other business tort claims.

Because many of Andrew’s clients are subject to extensive federal regulation and oversight, Andrew has significant experience successfully invoking federal preemption to defeat litigation.

Andrew also advises clients on their arbitration agreements. He has successfully helped numerous clients avoid multi-district class-action litigation by successfully enforcing the institutions’ arbitration agreements.

Clients praise Andrew for his personal attention to their matters, his responsiveness, and his creative strategies. Based on his “big wins in his class action practice,” Law360 named Mr. Soukup a “Class Action Rising Star.

Prior to practicing law, Andrew worked as a journalist.