45 general counsel and chief legal officers have signed a letter which requests that the Committee on Rules of Practice and Procedure amend the Federal Rules of Civil Procedure as pertains to three specific areas of MDL litigation: census of claims, interlocutory appellate review, and litigation funding.
An LFJ Conversation with Michael Kelley, Partner, Parker Poe
45 general counsel and chief legal officers have signed a letter which requests that the Committee on Rules of Practice and Procedure amend the Federal Rules of Civil Procedure (FRCP) as pertains to three specific areas of MDL litigation: census of claims, interlocutory appellate review, and litigation funding.
As written in the letter, the GCs and legal officers lament that the growth of MDLs (now 50% of the federal civil docket) has led to their being “less and less grounded in the widely accepted principles of procedural fairness and transparency that are the FRCP’s hallmarks.” The signatories express “serious concerns” about a lack of fairness in MDL procedures, and about the viability of MDLs going forward.
The letter outlines the procedural uncertainties that MDL litigants now face, including questions over uniformity of process in multiple jurisdictions, and whether procedures such as discovery tools, accepted motions and pathways to appeal should be clearly explained to all stakeholders. The 1937 adoption of the first FRCP stemmed from similar procedural uncertainties.
Along with changes to the initial census of claims and interlocutory appellate review process, the letter urges the FRCP to mandate disclosure of litigation funding agreements, citing the fact that litigation funding in MDLs is “growing by leaps and bounds,” yet few MDL judges “report that they are aware of TPLF in the proceedings before them.”
The letter goes on to state: “Disclosure is the only way that courts, parties and the Committee will learn who is in the courtroom and understand the issues that are raised by their presence. The funders’ fear of revealing privileged information should be handled just like it is for everyone else: redact it and ask for a protective order. The funders’ fear of rampant discovery is misplaced; disclosure of insurance agreements (which earlier judicial rulemakers decided to require over the strong objection of defendants) has not led to any such problems.”
45 GCs and legal officers signed the letter, including from prominent companies like AstraZeneca, Comcast, Exxon Mobil, Microsoft and Johnson & Johnson. Read the full letter here.
