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Seeking certain changes to multidistrict litigation, 45 general counsel and chief legal officers signed a letter asking the Committee on Rules of Practice and Procedure to amend the Federal Rules of Civil Procedure concerning initial census, interlocutory appellate review and third-party funding litigation.

"The Committee's review of the procedures used in multi-district litigation proceedings (MDLs) comes at a point of crisis," the letter says.

The group indicated that an initial census rule will stop meritless claims from entering the MDL space. The GCs said in large MDLs, up to 40% of claims are meritless. Under the proposed rule, plaintiffs would need to present evidence of their alleged harm early on.

"An initial census rule could solve the problem by requiring evidence of exposure to the alleged harm and evidence of injury to be produced within 60 days," the letter says.

Alex Dahl, general counsel of Lawyers for Civil Justice, said in an interview Tuesday that in the course of normal litigation, frivolous claims are often dismissed early in the action.

"However, in MDLs, they often stay on the docket for years at a time without ever being vetted," Dahl said. "The initial census would bring clarity and certainty to MDL cases involving how to vet claims early in the case."

Appellate review is rare in multidistrict litigation, the letter says. This is because the cases often settle. However, it is easier for plaintiffs to appeal a judge's decision than it is for defense counsel. The general counsel group says interlocutory appellate review would lead to more consistent results and provide better guidance for future parties and courts.

"For defendants, having some certainty about the legal basis of the case before you go through all of those trials is a very helpful data point that can help those defendants assess the case and the risk and the value of the resolution," Dahl said.

The letter also says there should be a rule requiring the disclosure of third-party litigation funding.

"It's important for parties in litigation to know who is actually in the courtroom," Dahl said. "It can help inform critical decisions including decisions about settlement value."

The letter was signed by the top lawyers at:

  • Altec Industries Inc.
  • Altria Group Inc.
  • American Property Casualty Insurance Association
  • Amgen Inc.
  • Argo Group
  • AstraZeneca Pharmaceuticals LP
  • The AZEK Company LLC
  • BASF Corp.
  • Bayer US LLC
  • Becton Dickinson and Co.
  • Builders Insurance Group
  • Celgene Corp.
  • Comcast Corp.
  • Cook Medical Holdings LLC
  • CSAA Insurance Group; Cummins Inc.
  • Eli Lilly and Co.
  • Endo International plc
  • Exxon Mobil Corp.
  • GlaxoSmithKline LLC
  • H5
  • Hyundai Motor America
  • Johnson & Johnson
  • Liberty Mutual Insurance
  • Medtronic
  • Microsoft Corporation
  • Novartis Pharmaceuticals Corp.
  • O'Reilly Auto Parts
  • Pfizer
  • The Procter & Gamble Co.
  • The RiverStone Group
  • Sanofi US
  • The Sherwin-Williams Co.
  • Smith & Nephew
  • State Farm Mutual Automobile Insurance Co.
  • Stryker
  • SunTrust Banks Inc.
  • Tennessee Farmers Insurance Cos.
  • Travelers
  • Verizon Communications
  • Walgreen Co.
  • Westfield
  • W.L. Gore & Associates Inc.
  • Zimmer Biomet
  • Zurich North America