• The census may include all attorneys or only attorneys seeking leadership positions. The census may include just filed claims or unfiled claims as well. The latter may help judges determine why certain categories of claims remain unfiled. Orrick, Rosenberg.
• The census order may also encourage plaintiffs with unfiled claims to register them with the court via a voluntary registry, as established by agreement of the parties. Registration is not mandatory, but may provide certain benefits including a tolling of the statute of limitations and cost-sharing with respect to obtaining documentation. However, in order to receive these benefits, registrants must comply with applicable deadlines unless good cause is shown. 2924

• Census orders can include questions regarding the personal information of the claimants, their injuries, product usage, and additional documents (i.e. medical tests). 2885 Pretrial Order #18.
• Judges have also issued a secondary census, sometimes called a “Census Plus,” to gather additional information on specific types of claims and follow up on their answers on the initial census form. 2924 Pretrial Order #15 (issuing a “Census Plus” form for all personal injury and medical monitoring claims)

• There is no one-size-fits-all place for the PFS in the overall discovery process. A transferee judge should consider whether there are generally applicable threshold defenses, i.e. preemption, that should be resolved before engaging in a PFS process in order to reduce unnecessary work. On the other hand, an early PFS may be useful for organizing the proceeding and dismissing unsupported claims. Lastly, PFS may be helpful later on in the proceeding where additional individualized information is needed, such as for plaintiffs who are not selected for bellwether trials. See FJC PFS, at 3-4.

The FJC has noted that it has become more common to discuss the use of PFS–and to enter orders requiring the submission of PFS–at an earlier stage of the proceeding. Id. at 6.

• Parties may agree to use a third-party vendor (In re Proton Pump Inhibitor Products Liability Litigation (No. II)), as opposed to direct submission to leadership (In re Heparin Products Liability Litigation) or opposing counsel (In re Yasmin & Yaz (Drospirenone) Marketing, Sales Practices & Products Liability Litigation), to collect and analyze PFS submissions. The judge may issue a case management order appointing a vendor and delineating the protocol for working with this vendor, as agreed upon by the parties. See FJC PFS, at 9. A transferee judge may also require parties to discuss issues of cost-sharing, access, and security, as PFS often contain sensitive and confidential information.

• After deciding that the proceeding would benefit from PFS, judges typically use one of methods to set the format and content of the PFS: ask the parties to directly negotiate with each other (In re GAF Elk Cross Timbers Decking Mktg., Sales Practices & Prods. Liab. Litig) or select a proposed PFS from separate submissions by the parties (In re Biomet M2a Magnum Hip Implant Products Liability Litigation). Under the former method, parties may not always come to agreement: The court should ask parties to submit an outline of unresolved differences and procedures to resolve them. If using the latter method, the court should set a deadline for submitting the proposed PFS. See FJC PFS, at 6.

• The FJC notes that PFS typically include five categories of information:
  • When and why the plaintiff used a product or device or service
  • Product identification records (brand used and model, if applicable)
  • Plaintiff’s medical history
  • What injury or injuries the plaintiff sustained
  • Requests for related documents and a witness list
  • Example PFS In re Actos from Beth Burch’s database.

           Additional information a PFS may seek include:

• Questions about the plaintiff’s background (i.e., educational and employment history, litigation history)
• Releases for medical, insurance, and financial information. Authorization from In re Actos from Beth Burch’s database.

In deciding whether to add categories, a transferee judge should weigh the benefits of obtaining additional information with the burden and cost placed on the plaintiffs. See, e.g., Elizabeth Chamblee Burch, Nudges and Norms in Multidistrict Litigation: A Response to Engstrom, 129 Yale L.J. 64, 80 (expressing concern about requiring a plaintiffs’ litigation history in PFS because it is not relevant to any party’s or defense). The fact sheet is a sworn statement completed under penalty of perjury. See FJC PFS, at 6.

• Bellwether trials are individual trials that are conducted by MDL transferee judges with the goal of producing reliable information about other cases centralized in that MDL proceeding. See Margaret S. Williams, Jason A. Cantone & Emery G. Lee III, Fed. Jud. Ctr., Plaintiff Fact Sheets in Multidistrict Litigation Proceedings, at 2 (2019). Information collected from PFS can be used to aid in the selection of cases for trial. See below for more information on bellwether trials.

Some judges start with a comprehensive fact sheet for all cases, but then move to a more streamlined questionnaire after the bellwether pool has been selected (Xarelto). Others deploy more comprehensive fact sheets only once the actions for possible bellwether trial have already been selected. (In re C-Qur). Id. at 22.

• The Manual of Complex Litigation specifies that Plaintiffs’ responses to PFS will be treated as answers to interrogatories under Fed. R. Civ. P. 33 and requests for production of documents under Fed. R. Civ. P. 34 and must be supplemented in accordance with Fed. R. Civ. P. 26.
• However, some judges have deviated from this rule. In MDL 2753, the court issued an order noting that PFS will not be considered interrogatories but will be governed by FRCP rules for completeness and compliance.

• The amount of time courts give to plaintiffs to fill out a PFS vary widely, from thirty to 120 days. Elizabeth Chamblee Burch, Nudges and Norms in Multidistrict Litigation: A Response to Engstrom, 129 Yale L.J. 64, 80. Because plaintiffs enter the proceeding at different times, courts often establish rolling deadlines.
  • (In re Fluoroquinolone Products Liability Litigation) (setting the deadline for pending cases to be three months from the date of the order and, for future cases, sixty days after they become part of the proceeding).
• The FJC notes that it is unlikely that all parties will comply with initial deadlines. See FJC PFS, at 15. Sometimes, an order will allow for extensions of deadlines if the parties agree.
  • Pretrial Order No. 13(A), In re Xarelto, MDL No. 2592 (June 23, 2015)

• Deficient and missing fact sheets are a recurring problem in large MDL proceedings. See FJC PFS, at 10. The opposing party is usually required to notify the court(Pretrial Order No. 7, In re Fluoroquinolone Prods. Liab. Litig., MDL No. 2642 (D. Minn. Apr. 26, 2016)–or more commonly, the parties directly (Case Mgmt. Order No. 5, In re Lipitor (Atorvastatin Calcium) Mktg., Sales Practices & Prods. Liab. Litig. (No. II), MDL No. 2502 (D.S.C. May 2, 2014))–when these deficiencies are uncovered. After these parties are given notice, usually in forty-five days or fewer, parties are usually given the opportunity to cure deficiencies within a deadline of two to six weeks. In re Roundup Products Liability Litigation, MDL No. 2741 (N.D. Cal.), Pretrial Order #50.

If a party fails to cure the deficiencies within the allotted time, one or more of the following enforcement mechanisms may be used:

• Motions to dismiss with prejudice. In re Lipitor (Atorvastatin Calcium) Marketing, Sales Practices and Products Liability Litigation (No. II)
• Show-cause orders, in which a the delinquent party must show case as to why the the party’s complaint or answer should not be dismissed or stricken with prejudice. In re Benicar (Olmesartan) Products Liability Litigation
• Call-docket approach, in which plaintiffs with deficient PFS are placed on a monthly call docket. If the plaintiff fails to appear at the call docket to establish good cause, the case would be dismissed with prejudice. In re Taxotere (Docetaxel) Products Liability Litigation
• Motions to compel. In re Abilify (Aripiprazole) Products Liability Litigation
• Motions for monetary sanctions, which defendants file. In re Ethicon, Inc., Pelvic Repair System Products Liability Litigation

• Courts are generally in agreement that Lone Pine orders are only justified in cases featuring many (i.e. hundreds or thousands of) litigants, though scholars have noted that such orders have become more common in smaller proceedings. Nora Freeman Engstrom, The Lessons of Lone Pine, 129 Yale L.J. 2, 38, 39. Acuna v. Brown & Root Inc., 200 F.3d 335, 337, 340-41 (5th Cir. 2000)
• Courts agree that if there is credible evidence that directly undercuts a plaintiff’s key assertions, the entry of an order may be appropriate. However, courts disagree whether Lone Pine orders should ever be issued absent these gaps. Id. McManaway v. KBR, Inc., 265 F.R.D. 384, 388 (S.D. Ind. 2009)

Some courts believe Lone Pine orders are “extraordinary” procedures that should only be used when existing procedural devices have been used to no avail (Johnson Controls (exceptional cases)), while others believe Lone Pine orders are “routine.” Id. at 39-40.

• Some courts issue Lone Pine orders before plaintiffs have had any opportunity to conduct discovery, while others believe that prediscovery orders are “impermissible.” at 40. Scholars have noted that prediscovery orders in particular deprive plaintiffs of the protections provided by Rule 56. Id. at 43. Modern Holdings (early).
• Others have issued Lone Pine orders at the end of the litigation process after a settlement agreement has been drafted, often with the goal of corralling the plaintiffs to opt in. 35 n.139. 2428 (17 — twilight)

• Some Lone Pine orders resemble PFS and do not require showings of causation, asking instead for information such as names, dates of birth, proof of product usage, and proof of qualifying injury. In re Avandia. Others are more demanding and require plaintiffs to provide expert evidence of causation. Fosamax

Transferee judges most often select leadership counsel and PSC members using: (1) an attorney “slate” submitted by plaintiffs’ counsel; (2) a competitive process; and (3) a mix of both. These approaches are discussed in more detail below.

(1) Slate Method. Judges using the “slate” (sometimes called “consensus”) method defer to plaintiffs’ attorneys, who work out an agreed-upon PSC roster among themselves. Critics note that the “slate” method tends to result in the appointment of repeat players, as certain attorneys are known to, and trusted by, their colleagues—and that these dynamics may stunt efforts to diversify MDL leadership. See Stephen R. Bough & Elizabeth Chamblee Burch, Collective Wisdom on Selecting Leaders and Managing MDLs, 106 Judicature 69, 73–75 (2022). Yet, others suggest that the slate method has advantages. Plaintiffs’ leadership counsel directing an MDL must work closely together for several years—and picking those who may not have strong working relationships is unwise. Lawyers are well-positioned to know who is best equipped to lead the MDL effectively, with energy and excellence. Id. at 73–75.      

• Case Management Order No. 2, In re Invokana (Canagliflozin) Prods. Liab. Litig., MDL No. 2750 (D.N.J. 2017). 

This matter having been before the Court for an initial case management conference on January 12, 2017, the Court having entered a case management order, CMO #1 [ECF No. 22], requiring plaintiffs’ counsel to meet and confer regarding the appointment of a steering committee, liaison counsel, and other leadership positions [ECF No. 22 at ¶ III(A)(1)], counsel having submitted consensus recommendations to the Court on January 20, 2017 [ECF No. 27], the Court having reviewed the submission and attached CVs, finding that the consensus recommendations present an array of highly skilled counsel with diverse backgrounds and experience which will provide the Court with an effective committee to advance this litigation in an efficient and just manner, for good cause shown, the Court hereby appoints the following members to Plaintiffs’ Steering Committee (“PSC”) . . . 

(2) Competitive Process. In contrast, judges utilizing a competitive process seek applications from attorneys who have filed actions in the MDL. Judges often seek a resume and letter indicating why a lawyer is qualified for service on the PSC, and some judges hold what are called “beauty pageants” to briefly interview various candidates. (Judges’ criteria for PSC attorney selection are discussed further below.)

• Pretrial Order No. 2, In re Volkswagen “Clean Diesel” Mktg., Sales Practices, & Prods. Liab. Litig., MDL No. 2672 (N.D. Cal. 2016). 

Each attorney’s application shall include a resume no longer than two pages and a letter no longer than three pages (single-spaced) addressing the following criteria:

1. professional experience in this type of litigation, including MDL experience as lead or liaison counsel and/or service on any plaintiffs’ committees or subcommittees;
2. the names and contract [sic] information of judges before whom the applicant has appeared in the matters discussed in response to no. 1 above;
3. willingness and ability to immediately commit to time-consuming litigation;
4. willingness and ability to work cooperatively with other plaintiffs’ counsel and defense counsel; 
5. access to resources to prosecute the litigation in a timely manner;
6. willingness to serve as lead counsel, a member of a steering committee, or both;
7. the particular category or categories of plaintiffs the applicant wants to specifically represent (vehicle owners, lessees, dealerships or all plaintiffs, etc.); and
8. any other considerations that qualify counsel for a leadership position.

Applications may also include an attachment indicating the names of other counsel who have filed cases in this MDL litigation and support the applicant’s appointment as lead counsel or a steering committee member.

• Pretrial Order No. 1, In re Philips Recalled CPAP, Bi-Level PAP, and Mechanical Ventilator Prods. Litig., MDL 3014, (W.D. Pa. 2022), ECF No. 4. 

APPLICATIONS FOR PSC. The court will invite the submission of individual applications for positions of membership or leadership of the PSC. The applications must be filed at the master docket, 21-1230. The main criteria considered will be willingness and availability to commit to a time-consuming project, ability to work cooperatively with others, and professional experience in this kind of litigation. Applications should succinctly address each of the above criteria and any other relevant matters. No submissions longer than three pages will be considered. Only attorneys of record in this litigation may apply. The court will consider objections to the appointment of any applicant in writing and filed at the master docket, 21-1230. Objections must be succinct and supported by necessary documentation. The objections should not exceed three pages. Applicants will have an opportunity to file at the master docket, 21-1230 a reply to any such objection lodged against them. The court at the initial status conference, which is discussed below, will schedule the date for the filing of applications for the PSC.

LEAD COUNSEL. The court intends to select from the PSC two lead counsel. Any counsel who wants to be considered for lead counsel must apply for the 12-member PSC and indicate whether the counsel wants to be considered for appointment as lead counsel.

INTERVIEWS. The court intends to interview the applicants for liaison counsel, the PSC, and lead counsel in open court. The applicants should be prepared to attend the interviews in person in Courtroom 5A of the Joseph F. Weis, Jr. United States Courthouse, 700 Grant Street, Pittsburgh, Pennsylvania 15219. The court at the initial status conference, which is discussed below, will schedule the date for the conference at which the interviews will take place.

Pretrial Order No. 8, In re Philips Recalled CPAP, Bi-Level PAP, and Mechanical Ventilator Prods. Litig., MDL 3014, (W.D. Pa. 2022), ECF No. 395. 

WHEREFORE, this court reviewed the 75 applications for co-lead counsel, Plaintiffs’ Steering Committee (“PSC”), or liaison counsel (collectively “plaintiffs’ leadership”), and conducted a videoconference interview of each applicant during which the court had the privilege to learn about each applicant’s impressive relevant professional experience and the contributions he or she may offer to the plaintiffs and the court in this multi-district litigation (“MDL”) . . . .

(3) Mixed Approach. Sometimes, some plaintiffs’ attorneys apply as a slate, while others apply individually, in the same MDL. In the Blackbaud MDL, the transferee court solicited both individual applicants and slates. 

• Case Management Order No. 2, In re Blackbaud, Inc., Customer Data Breach Litig., MDL No. 2972 (D.S.C. 2021). 

Those applying as part of a slate should limit their application to twenty-five (25) pages, double-spaced, with attachments of no more than fifty (50) pages. An applicant applying as an individual should identify what role they are seeking and limit the application to ten (10) pages, double-spaced, with attachments of no more than twenty- five (25) pages. Applicants filing as part of a slate are not permitted to file a separate individual application. 

Ultimately, the court appointed a group of attorneys that included several who had applied as a slate, as well as some individual applicants. See Case Management Order No. 5, In re Blackbaud, Inc. Customer Data Breach Litig., MDL No. 2972 (D.S.C. 2021).

Transferee judges may seek input from other case participants prior to finalizing the PSC’s makeup. Some judges, for instance, appoint interim lead counsel, who, in turn, make recommendations to the court about the size and composition of the PSC (in addition to carrying out other leadership duties on an interim basis). This delay in appointing permanent leadership has pros and cons. On one hand, it can permit the court to get a sense of the relationships between different plaintiffs or groups of plaintiffs, allowing the court to better ensure that all groups of plaintiffs are adequately represented on the PSC. On the other hand, however, these stutter-step appointments may inject delay into the process, as leaders, unsure of who will ultimately hold the reins, may delay investing significant time or resources in case development. 

• Pretrial Order No. 2, In re 3M Combat Arms Earplug Prods. Liab. Litig., MDL No. 2885 (N.D. Fla. 2019). 

The Court hereby appoints Bryan F. Aylstock of Aylstock, Witkin, Kreis & Overholtz, PLLC, 17 E. Main St., Pensacola, FL 32502, to serve as interim lead and liaison counsel for the plaintiffs. Mr. Aylstock is well-qualified to carry out the responsibilities of these positions on an interim basis, given his extensive experience in complex litigation, including a leadership role in a prior MDL before this Court, and his local presence. Applications for leadership positions will be solicited once a leadership structure is established.

Courts take different approaches regarding the duration of leadership appointments. Some courts make their initial appointments and never revisit them. Others appoint leadership to fixed terms (commonly one year), requiring renewal. 

Requiring renewal can set the tone that leadership positions must be continually earned, and renewal procedures can help judges ensure that the members of the PSC are fulfilling their duties and allow plaintiffs (particularly those represented by non-leadership counsel) to exercise oversight over the attorneys handling their case. See Nora Freeman Engstrom et al., Plaintiffs and Attorneys in Multidistrict Litigation: Strengths, Deficits, and Paths Forward 42 (2023). Some judges also favor requiring renewal because leadership appointments happen very early in the litigation—when judges may not have much exposure to the counsel they are appointing or how the litigation will evolve over time. 

• Corrected Case Management Order No. 4, In re Testosterone Replacement Therapy Prods. Liab. Litig., MDL No. 2545 (N.D. Ill. 2014). 

All appointments are made for a one-year period and will expire on August 15, 2015. Appointees may apply for reappointment when their term expires. A re-application process will be established at an appropriate time in advance of the expiration date. Counsel are advised in advance that applications for reappointment will be required to include references to the nature and scope of the applicant’s work, including time and resources expended during the previous term.

• Case Management Order No. 4, In re Pradaxa (Dabigatran Etexilate) Prods. Litig., MDL No. 2385 (S.D. Ill. 2012) 

The Court has serious concerns about the large size of this leadership group [which consisted of 27 attorneys]. It is significantly in keeping with the size requested by the majority of plaintiffs’ lawyers who petitioned the Court, even though the Court did not appoint the exact slate requested by the caucus which sought a “slate.” Because of the Court’s concerns with the size, the appointments above are for the period to expire October 31, 2013. The Court will accept new applications no later than October 1, 2013

• Pretrial Order No. 7, In re 3M Combat Arms Earplug Prods. Liab. Litig., MDL No. 2885 (N.D. Fla. 2019).

All appointments are made for a one-year period and will expire on May 22, 2020. Counsel may apply for reappointment when their term expires. A reappointment application process will be established at an appropriate time in advance of the expiration date. Applications for reappointment must detail the nature and scope of the attorney’s work on this litigation, including the time and resources that he or she expended during the previous term. 

However, there are potential downsides to requiring renewal. For instance, the renewal process itself takes time, and increased monitoring of leadership can create additional burdens on counsel and judges. In addition, turnover in MDL leadership may undermine the efficiency and continuity of the litigation. See Bolch Guidelines, supra at 36 (noting that critics of the renewal process “argue that it takes the judge, and even counsel to a certain extent, months to understand the dynamics within the cases sufficiently well to understand what blocks of plaintiff interests exist,” militating in favor of longer appointments). The ability to remove attorneys from leadership may also create or fuel tension between plaintiffs’ attorneys. See Engstrom et al., supra at 117–18. 

Some judges, moreover, recognize that they already can require changes to leadership at any time without creating a renewal process, even if a given appointment is not formally time limited. See Bough & Burch, supra at 76. 

• Pretrial Order No. 8, In re Philips Recalled CPAP, Bi-Level PAP, and Mechanical Ventilator Prods. Litig., MDL No. 3014 (W.D. Pa. 2022). 

Terms of Appointment. Counsel who accept the appointments set forth in this order agree to serve for the duration of the MDL or until such time as the court determines that a change in the duration of service shall be made. 

* * *

Review of Appointments. The court will consider a process for periodically evaluating leadership appointees’ performance and commitment to the tasks assigned, as well as the ongoing needs of the litigation. The court anticipates that this evaluation will happen on an approximately annual basis; but this timing will be adjusted as circumstances warrant and at a time that minimizes any disruption to the litigation that might occur if changes were made to the team. . . .

Courts use a variety of criteria in deciding who to appoint to MDL leadership positions, including applicants’ experience with prior MDLs, the court’s personal experience with applicants, the experience of other MDL courts in working with applicants, their willingness to act cooperatively, and their access to capital, which can be particularly important because leadership on the plaintiffs’ side typically fronts litigation costs—and those costs can be enormous. For example:

• Pretrial Order No. 1, In re Generic Digoxin and Doxycyclone Antitrust Litig., MDL No. 2724 (E.D. Pa. 2016). 

The Court invites the submission, no later than September 23, 2016, of individual applications for positions of membership or leadership of the PSC. The applications must be filed in MDL 2724. The main criteria considered will be willingness and availability to commit to a time-consuming project, ability to work cooperatively with others, and professional experience in this type of litigation.

• Case Management Order No. 4, In re Pradaxa (Dabigatran Etexilate) Prods. Litig., MDL No. 2385 (S.D. Ill. 2012). 

The Court having considered all of the applications submitted, together with the experience of each applicant, having consulted with other MDL judges who have worked with those applicants with MDL experience, having taken into account his own experience with those applicants who have appeared before him in an MDL context or in other complex cases, as well as conducting personal interviews with selected applicants (with the consent of defense counsel), appoints the following plaintiffs’ counsel to leadership positions . . . .

Sometimes, judges consider context-specific qualifications. See Bough & Burch, supra at 72–73. For instance, in the NCAA Concussion MDL, Judge Lee appointed leaders who had shared experiences with the plaintiffs, namely playing intercollegiate sports at NCAA-affiliated schools. For more on the criteria transferee judges should keep in mind when selecting leadership counsel, see Bolch Guidelines, Chapter 2, Guideline 4 and accompanying text.

Typically, courts request that attorneys seeking leadership positions submit written applications that describe their qualification to serve in leadership roles. Bolch Guidelines, supra at 38. That may be accomplished through traditional motions practice, including by giving participants the ability to oppose such motions. Others solicit more ad hoc submissions from interested individuals.

• Pretrial Order No. 2, In re Volkswagen “Clean Diesel” Marketing, Sales Practices, & Products Liability Litig., MDL No. 2672 (N.D. Cal 2015)

The Court requires individual application[s] for a lead counsel or steering committee position. Any attorney who has filed an action in this MDL litigation may apply for a lead counsel or steering committee position or both. All applications must be e-filed in the Master file, 15-MD- 2672, on or before Friday, January 8, 2016.

Each attorney’s application shall include a resume no longer than two pages and a letter no longer than three pages (single-spaced) addressing the following criteria:

1. professional experience in this type of litigation, including MDL experience as lead or liaison counsel and/or service on any plaintiffs’ committees or subcommittees;
2. the names and contract information of judges before whom the applicant has appeared
3. in the matters discussed in response to no. 1 above;
4. willingness and ability to immediately commit to time-consuming litigation;
5. willingness and ability to work cooperatively with other plaintiffs’ counsel and defense counsel;
6. access to resources to prosecute the litigation in a timely manner;
7. willingness to serve as lead counsel, a member of a steering committee, or both;
8. the particular category or categories of plaintiffs the applicant wants to specifically
9. represent (vehicle owners, lessees, dealerships or all plaintiffs, etc.); and
10. any other considerations that qualify counsel for a leadership position.

Applications may also include an attachment indicating the names of other counsel who have filed cases in this MDL litigation and support the applicant’s appointment as lead counsel or a steering committee member.

All responses or objections to applications must be e-filed in the Master file, 15-MD-2672, on or before Thursday, January 14, 2016 and are likewise limited to three single-spaced pages.

• Pretrial Order No. 1, In re Zantac (Ranitidine) Prods. Liab. Litig., MDL No. 2924 (S.D. Fla. 2020).

Applications and/or nominations for the leadership positions must be filed on or before March 6, 2020. The applications and/or nominations must also be served upon counsel named in Schedule B. The main criteria for individual membership in the PSC will be: (a) willingness and availability to commit to a time-consuming project; (b) ability to work cooperatively with others; (c) professional experience in this type of litigation; and (d) willingness to commit the necessary resources to pursue this matter. Collectively, the Court seeks a PSC that is diverse and experienced, but also has a diversity of experiences – the leadership team should represent different skill sets, expertise, life experiences, and prior MDLs, so that together they can bring together a multiplicity of approaches to select the best ideas for moving this matter forward. 

The Court recognizes the value of both seasoned leadership and energetic attorneys with new ideas. Applications and/or nominations should succinctly address each of the above criteria as well as any other relevant matters. No submissions longer than three (3) pages plus an appendix will be considered. The Court will only consider attorneys who have filed a civil action in this litigation. Appendix A to the application and/or nomination shall include a list of all state and federal Zantac cases in which the attorney appears as counsel. State cases shall be listed separately from federal cases, and the list of state cases shall include the court in which the case is pending, the court file number, the name of the presiding judge, and the presiding judge’s telephone number. Appendix B shall include a list or chart of the other MDLs in which the attorney has performed work, including the presiding judge, the presiding judge’s telephone number, the position (if any) held, the nature of the MDL (drug, device, antitrust, etc.), a phrase describing the nature of the work performed (e-discovery, science, depositions, etc.), and the extent of ongoing time commitment to that MDL. Attorneys may include specific non-MDL matters that they believe are highly relevant, but counsel are reminded that brevity and judgment are valuable traits in leadership counsel. Attorneys may include an optional Appendix C listing other attorneys whom they believe would be beneficial to leadership, in lieu of a separate nomination, with a single sentence explaining what unique expertise the individual brings as part of the proposed collective group. 

Increasingly, there is a question of when and how judges should consider diversity among potential leadership attorneys. See Engstrom et al., supra at 42. Many judges recognize that plaintiffs in MDLs are themselves diverse, a fact that some argue merits diverse MDL leadership. See Grant Patterson & Diandra “Fu” Debrosse Zimmermann, A Blueprint for Cracking the MDL Diversity Barrier, Westlaw Today (Feb. 16, 2023). However, others have suggested that additional evidence is necessary to determine exactly how the presence of diverse leadership furthers the interests of diverse plaintiffs. See David L. Noll & Adam S. Zimmerman, Diversity and Complexity in MDL Leadership: A Status Report from Case Management Orders, 101 Tex. L. Rev. 1679 (2023) (discussing the lack of gender diversity in MDL leadership positions and calling for additional research into the issue); Deborah Hensler, Distorting the Purposes of Multidistrict Litigation: Reflections on Noll and Zimmerman, 102 Tex. L. Rev. Online 3 (2023) (pointing out that Noll and Zimmerman’s work highlights the need for robust analysis of diversity in MDL leadership). 

There is evidence that PSCs are not particularly diverse. In 2021, only 16 percent of lawyers appointed to leadership roles identified as “nonwhite.” Burford Capital LLC, Making Inroads in the Diversity of MDL Leadership (last visited Jul. 20, 2023). While the number of women in leadership positions has increased over time, in 2015, women held only 27 percent of MDL leadership posts. Brooke D. Coleman, A Legal Fempire?: Women in Complex Civil Litigation, 93 Ind. L.J. 617, 636 (2018). Another study of MDLs pending in 2019 similarly determined that only 24.2% of lead counsel appointments went to women. Noll & Zimmerman, supra at 1705. Many believe that, given this evidence, it is important to take steps to ensure that PSCs contain a mix of voices and perspectives.

Judges focused on diversity among PSC attorneys have taken several related approaches.

(1) Some judges express their intent to consider diversity before making leadership appointments.

• Pretrial Order No. 4, In re 3M Combat Arms Earplug Prods. Liab. Litig., MDL No. 2885 (N.D. Fla. 2019). 

The Court intends to establish a balanced leadership team that reflects diversity of all types and which has the synergy to capably steer this litigation to its resolution. Given the complex substantive issues inherent in large-scale litigation such as this, the leadership team must include attorneys with demonstrated capacity, skill, reputation, and financial resources to fairly, effectively, and efficiently lead an MDL. It is equally important for leadership to reflect the diversity of legal talent within the plaintiffs’ bar, in terms of education, background, experience, and demographics. Finally, attorneys should have a demonstrated willingness and ability to successfully work with others, build consensus, and amicably manage disagreements.

• Case Management Order No. 2, In re Blackbaud, Inc., Customer Data Breach Litig., MDL No. 2972 (D.S.C. 2021). 

The court is committed to the diversity of MDL leadership. Given the multitude of claims in this MDL from diverse Plaintiffs across the country, diverse leadership is integral to the success of these proceedings. The court also seeks to develop the future generation of diverse MDL leadership by providing competent candidates with opportunities for substantive participation now. It will make a conscious effort to avoid implicit bias and not overlook qualified applicants based on race, color, gender, sexual orientation, age, or geography. Additionally, the court will carefully monitor the litigation to ensure that counsel are performing their assigned duties in a manner that is free of invidious discrimination and bias. It expects that leadership will choose a diverse slate of vendors, including accountants and e-discovery teams.

(2) Some judges highlight the importance of diversity in their decision-making when explaining chosen appointments. Here, Judge Robin L. Rosenberg of the Southern District of Florida discusses several types of diversity and urges more diversity in subsequent leadership teams.

• Pretrial Order No. 20, In re Zantac (Ranitidine) Prods. Liab. Litig., MDL No. 2924 (S.D. Fla. 2020). 

[A]t only 31% female applicants, much work remains to be done to give judges an applicant pool that reflects the diversity of not only our society but our profession, particularly at the senior levels of leadership. So too, the Court noted that only a small subset of the applicants identified as non-Caucasian, and that no attorneys identified as LGBTQ or disabled, underscoring the breadth of these continuing challenges. However, quantitative metrics are only one measure. Through the interview process, the applicants displayed a remarkable diversity of life experiences, whether as veterans, immigrants, or individual life stories not easily categorized here but which the Court values. The Court hopes that as the litigation moves forward, the leadership team will endeavor to build on the diversity of its team. The Court also hopes that all counsel and parties will be mindful in using this MDL to provide an opportunity for a broader array of attorneys to have experiences that position them to take on more senior roles in future MDLs.

Notably, even if judges choose to appoint a slate (in whole or in part), they sometimes still explicitly consider diversity and require attorneys applying together as a slate to describe the diverse backgrounds of attorneys in their application.

• Case Management Order No. 2 at 3, In re Blackbaud, Inc., Customer Data Breach Litig., MDL No. 2972 (D.S.C. 2021). 

Explain how you or your slate may bring a breadth of experience and diversity of background to this litigation.

Given the overall lack of diversity in the upper levels of the legal profession—only 11.4 percent of law firm partners are minorities, and just 26.65 percent are women—it might appear that diversity and experience are incompatible. See Karen Sloan, Law Firm Associate Diversity Deepened in 2022 as Partners Saw Slower Change, Reuters (Jan. 12, 2023). By that logic, courts must favor one attribute over another when selecting MDL leadership. See Alissa del Riego, Driving Diverse Representation of Diverse Classes, 56 U. Mich. J.L. Reform 67, 73 (2022) (noting that, when decisions are based almost exclusively on counsel’s experience managing similar litigation, diverse plaintiffs’ lawyers are less likely to be selected). 

Some courts, however, have employed methods to increase diversity among MDL leadership while also ensuring that appointed counsel is expert, experienced, and well-resourced. For instance, some judges have established “leadership development committees” that aim to increase diversity while allowing new practitioners to gain experience and expertise as MDL leaders. These development committees essentially give mid-career lawyers an onramp to the next level of leadership. 

In Zantac, for example, Judge Rosenberg created a “leadership development committee” to offer opportunities for “less experienced attorneys.” In so doing, she made clear that these attorneys should be given substantive work—but also that they should remain subject to careful supervision. Bough & Burch, supra at 73. Judge Rosenberg created a few mechanisms to monitor the leadership development committee, including directing a special master to meet periodically with individual members of the leadership development committee to ensure that they were receiving “appropriate opportunities for their ability and skills.”

• Pretrial Order No. 20 at 6-7, In re Zantac (Ranitidine) Prods. Liab. Litig., MDL No. 2924 (S.D. Fla. 2020). 

This Court is keenly aware of the concerns raised in recent years about the challenges faced by less experienced attorneys in obtaining leadership appointments in MDL proceedings. While this Order is not the time or place for an exhaustive discussion of this issue, suffice it to say that this Court is sensitive to these concerns, as well as the need to have more experienced MDL practitioners lead and populate steering committees to adequately represent the interests of plaintiffs in large, complex and costly MDL matters. The Court views these concerns as complimentary, rather than mutually exclusive. In an attempt to balance the needs of this MDL, as set forth below, this Court hereby establishes a Leadership Development Committee (LDC). 

The LDC consists of attorneys who applied for leadership positions in this MDL, but whom the Court did not select for appointment to the PSC. The Court was impressed by the insights of each of these applicants and sees the potential in each of them to become leaders within the MDL bar. The Court believes these attorneys will benefit from the mentorship and experience gained from participation in a large and complex MDL, and that the MDL will equally benefit from their enthusiasm and fresh perspective. The attorneys appointed to the LDC, most of whom have not previously been appointed to an MDL steering committee, shall be mentored by and work with those attorneys appointed to the PSC. It is the Court’s expectation that the PSC members will actively mentor and work closely with the attorneys appointed to the LDC so they have the opportunity to play a meaningful role in various aspects of this MDL, including subcommittee assignments, and thereby gain further experience in preparation for future service on steering committees. 

The Court also directs that Special Master Dodge shall meet periodically with LDC members individually, and with the Co-Chairs of the LDC, to ensure that they are receiving appropriate opportunities for their ability and skills, including the opportunity to present before this Court. To the extent that any Order of this Court conflicts with the ability of the LDC to effectuate the Court’s intent in this regard—for example, limitations that may be imposed through the anticipated common benefit order on staffing and travel, or the number of presenters at hearings—Lead Counsel may request individual waiver of these restrictions, which the Special Master is hereby granted authority to approve in her discretion without the need for future Order of this Court. 

Similarly, Judge Conti appointed a Leadership Development Committee in Philips to provide attorneys possessing “minimal MDL experience” with “the education, experience, and mentorship necessary to lead future MDLs.”

• Pretrial Order No. 8, In re Philips Recalled CPAP, Bi-Level PAP, and Mechanical Ventilator Prods. Litig., MDL No. 3014 (W.D. Pa. 2022). 

Leadership Development Committee Appointment. The court appreciated the enthusiasm and talent of the applicants with minimal MDL experience. A Leadership Development Committee is appropriate in this case to provide those applicants with the education, experience, and mentorship necessary to lead future MDLs. The co-lead counsel shall appoint a member of the PSC to chair this committee and oversee the incorporation of the talents of the members of this committee throughout the litigation. It is the court’s intent that the members of the Leadership Development Committee will—where appropriate—meaningfully participate in all phases of this MDL including, but not limited to, participation on committees and subcommittees, drafting master complaints, drafting and arguing briefs, participating in settlement negotiations, and preparing for and taking depositions of lay witnesses and expert witnesses.

In selecting attorneys for inclusion on leadership development committees, courts may apply similar criteria to those used to select more senior MDL leaders. For example, in Hair Relaxer, by establishing a Leadership Development Committee (“LDC”) “designed to provide mentorship to those individuals interested in furtherance of their understanding and involvement in MDL practice, with particular interest in this litigation,” Judge Rowland’s selection of members to the LDC “followed closely” the court’s criteria for appointing other members of leadership.

• Order Appointing Plaintiffs’ Leadership Development Committee, In re Hair Relaxer Mktg. Sales Pracs. & Prods. Litig., MDL No. 3060 (N.D. Ill. 2023). 

The criteria for LDC selection followed closely the Court’s MDL Case Management Order No. 1 (ECF No. 3), in requiring that each applicant have (a) willingness and availability to commit to a time-consuming project; (b) ability to work cooperatively with others; (c) professional experience in this type of litigation; and (d) access to sufficient resources to advance the litigation in a timely manner.

A further avenue for improving the pipeline of future MDL leaders is to create formal mentorship opportunities for even more junior attorneys. For instance, in Hair Relaxer, Judge Rowland not only created the LDC, but also a “Leadership Development Sub-Committee” composed of “junior lawyer applicants.”

• Order Appointing Plaintiffs’ Leadership Development Committee, In re Hair Relaxer Mktg. Sales Pracs. & Prods. Litig., MDL No. 3060 (N.D. Ill. 2023).

During the LDC application and interview process, Plaintiffs’ Leadership recognized an appreciable number of junior lawyer applicants who, while likely several steps away from leading an MDL and thus not suited for the LDC, could still benefit from a structured mentorship setting within this MDL. Those attorneys shall be appointed to a Court commissioned second committee—the LDC Sub-Committee—that will be Chaired by the above-named LDC Co-Chairs and who will provide detailed guidance and instruction on the mechanics of the MDL process.

• Pretrial Order No. 7, In re Volkswagen “Clean Diesel” Mktg., Sales Practices, & Prods. Liab. Litig., MDL No. 2672 (N.D. Cal. 2017)

• Pretrial Order No. 8, In re Philips Recalled CPAP, Bi-Level PAP, and Mechanical Ventilator Prods. Litig., MDL No. 3014 (W.D. Pa. 2022). 

• Case Management Order No. 3, In re Elmiron (Pentosan Polysulfate Sodium) Prods. Liab. Litig., MDL No. 2973 (D.N.J. 2021).

• Pretrial Order No. 20, In re Zantac (Ranitidine) Prods. Liab. Litig., MDL No. 2924 (S.D. Fla. 2020). 

• Pretrial Order No. 7, In re 3M Combat Arms Earplug Prods. Liab. Litig., MDL No. 2885 (N.D. Fla. 2019). 

1. Lead

When it comes to the specific responsibilities of lead counsel, MDLs are not one-size-fits-all. While many judges turn to the guidelines in the Manual for Complex Multidistrict Litigation for guidance on appropriate leadership tasks, there is wide variance in the kinds of additional responsibilities and duties enumerated by judges. For further discussion, see generally David L. Noll, What Do MDL Leaders Do?: Evidence from Leadership Appointment Orders, 24 Lewis & Clark L. Rev. 433 (2020). For more on lead counsel duties, see Bolch Guidelines, Chapter 3 and Manual Complex Litig. §§ 10.222, 40.22.  

Some examples of tasks assigned to lead counsel include:

• Pretrial Order No. 7, In re Volkswagen “Clean Diesel” Mktg., Sales Practices, & Prods. Liab. Litig., MDL No. 2672 (N.D. Cal. 2017). 

2. The Court vests Ms. Cabraser, as Lead Counsel and PSC Chair, with the authority and duty to coordinate and oversee the PSC responsibilities set forth below; to schedule PSC meetings and keep minutes or transcripts of these meetings; to appear at periodic Court-noticed status conferences and hearings; to sign and file all pleadings relating to all actions; and to bind the PSC in scheduling settlement discussions and discovery, setting agendas, entering into stipulations, and in other necessary interactions with the settlement master, defense counsel, and the PSC. Ms. Cabraser shall also have the authority to retain the services of any attorney not part of the PSC to perform any common benefit work, provided the attorney so consents and is bound by the PSC’s compensation structure. She shall perform other necessary PSC administrative and logistic functions and carry out any other duty as the Court may order.
3. Lead Counsel shall also do the following:

• Establish and maintain a depository for orders, pleadings, hearing transcripts, and all documents served upon plaintiffs’ counsel, and make such papers available to plaintiffs’ counsel upon reasonable request.
• Maintain in conjunction with their accountant records of receipts and disbursements advanced by PSC members and received by the PSC and report in writing to the PSC concerning disbursements and receipts.
• Designate counsel to schedule depositions, set agendas and otherwise interact with defense counsel, Government counsel, various plaintiffs’ counsel, and the settlement master.
• Pretrial Order No. 8, In re Philips Recalled CPAP, Bi-Level PAP, and Mechanical Ventilator Prods. Litig., MDL No. 3014 (W.D. Pa. 2022). 

Responsibilities and Duties. Co-lead counsel will have the duties outlined in Section 10.221 of the Manual for Complex Litigation (Fourth), which include formulating and presenting positions on substantive and procedural issues during the litigation. Co-lead counsel shall prosecute all claims (class, medical monitoring, and personal injury) and coordinate the pretrial proceedings conducted by counsel for the individual plaintiffs and classes. The authority, duties, and responsibilities of co-lead counsel with respect to all claims also include, but shall not be limited to, the following (after consultation with members of the PSC and other counsel as may be appropriate): 

• • organize themselves and agree upon a plan for conducting the MDL on behalf of all plaintiffs;
  • determine and present (in briefs, oral argument, or such other fashion as may be appropriate, personally or by a designee) to the court and opposing parties the position of the plaintiffs on matters arising during the coordinated pretrial proceedings; 
  • the filing, if appropriate, of consolidated master complaints and other pleadings; 
  • brief and argue motions for the plaintiffs and file opposing briefs and argue motions and proceedings initiated by other parties (except as to matters specifically directed to individual plaintiffs and their counsel) or designate the appropriate counsel to carry out these tasks;
  • the initiation and conduct of discovery on behalf of the plaintiffs consistent with the requirements of Federal Rule of Civil Procedure 26, including the preparation of joint interrogatories and requests for production of documents and the examination of witnesses in depositions, except that the discovery and motions initiated by the defendants directed to or regarding named individual plaintiffs will be handled by the counsel for those individuals; 
  • delegate specific tasks to other counsel in a manner to ensure that pretrial preparation for the plaintiffs is conducted effectively, efficiently and economically; 
  • enter into stipulations with opposing counsel necessary for the conduct of the MDL; 
  • convene meetings of the PSC, other committees or subcommittees as necessary for the purpose of proposing joint action and discussing and resolving matters of common concern;
  • coordinate common benefit payments into a common benefit shared cost fund in amounts and at times to be set forth in a protocol prepared by the Plaintiffs’ Time and Expense Subcommittee; 
  • assess members of the PSC, members of other committees (including the Leadership Development Committee) and members of subcommittees, and other counsel performing authorized common benefit work; 
  • consult with and employ expert witnesses (in consultation with any relevant subcommittee); 
  • monitor work performed by the PSC, Settlement Committee, Leadership Development Committee, co-liaison counsel, subcommittees, and those whose work co-lead counsel has specifically authorized; 
  • perform all tasks necessary to carry out the functions of co-lead counsel and to properly coordinate plaintiffs’ pretrial activities; 
  • form task-specific subcommittees of counsel, as appropriate; 
  • authorize plaintiffs’ counsel to initiate case-specific motions and discovery; 
  • designate plaintiffs’ counsel authorized to attend hearings and depositions; 
  • along with the Settlement Committee, participate in the settlement negotiations on behalf of plaintiffs and enter into settlement agreements subject to court approval; 
  • if there is a settlement, participate with the Settlement Committee in proposing a plan of allocation; 
  • prepare and distribute periodic status reports to the PSC, the court, and the parties; and coordinate and communicate with defendants’ counsel with respect to the matters addressed in this paragraph.
    • Pretrial Order No. 20 at 14-17, In re Zantac (Ranitidine) Prods. Liab. Litig., MDL No. 2924 (S.D. Fla. 2020). 

With respect to the common benefit claims, class claims and coordinated pretrial proceedings, Lead Counsel shall: 

• • 1. determine (after consultation with members of the Steering Committee and other co-counsel as may be appropriate) and present (in briefs, oral argument, or such other fashion as may be appropriate, personally or by a designee) to the Court and opposing parties the position of the Plaintiffs on matters arising during the coordinated pretrial proceedings; 
    2. coordinate the initiation and conduct of discovery on behalf of the Plaintiffs consistent with the requirements of Fed. R. Civ. P. 26, including the preparation of joint interrogatories and requests for production of documents and the examination of witnesses in depositions, except that the discovery and motions initiated by the Defendants directed to or regarding named individual Plaintiffs will be handled by the attorney(s) for those individuals; 
    3. delegate specific tasks to other counsel in a manner to ensure that pretrial preparation for the Plaintiffs is conducted effectively, efficiently and economically; 
    4. enter into stipulations with opposing counsel necessary for the conduct of the MDL; 
    5. convene meetings of the Steering Committee or other subcommittees as necessary for the purpose of proposing joint action and discussing and resolving matters of common concern; 
    6. organize themselves and agree on a plan for conducting the MDL on behalf of all Plaintiffs; 
    7. assess members of the Steering Committee (including Liaison Counsel), Leadership Development Committee, and other counsel performing authorized common benefit work common benefit payments [sic] into a Common Benefit “Shared Cost” Fund, in amounts and at times they determine to be necessary and appropriate in consultation with the Steering Committee, collect payments, maintain an account, pay generic expense, and account to the Steering Committee and the Court upon request as to the collection and use of such funds; 
    8. brief and argue motions for the Plaintiffs and file opposing briefs and argue motions and proceedings initiated by other parties (except as to matters specifically directed to individual Plaintiffs and heir counsel) or designate the appropriate counsel to carry out these tasks; 
    9. consult with and employ expert witnesses; 
    10. maintain time and expense records for work performed, costs incurred and other disbursements made or any potential common benefit claim, proof of potential common benefit claim, and related matters on behalf of the Steering Committee, and report with reasonable regularity, in writing, to the Steering Committee, and Liaison Counsel, concerning expenses, disbursements, and receipts; 
    11. monitor work performed by the Steering Committee, Leadership Development Committee, Liaison Counsel, subcommittee members and those whose work it has specifically authorized; 
    12. perform all tasks necessary to carry out the functions of Lead Counsel and to properly coordinate Plaintiffs’ pretrial activities; 
    13. form task-specific subcommittees of counsel, as appropriate; 
    14. authorize Plaintiffs’ counsel to initiate case-specific motions and discovery; 
    15. designate Plaintiffs’ counsel authorized to attend hearings and depositions; 
    16. conduct settlement negotiations on behalf of Plaintiffs, and enter into settlement agreements subject to Court approval; 
    17. if there is a settlement, propose a plan of allocation; 
    18. prepare and distribute periodic status reports to the Steering Committee, the Court, and the parties; and 
    19. coordinate and communicate with Defendants’ counsel with respect to the matters addressed in this paragraph. 

No generic discovery or other common action or work in this litigation will be undertaken on behalf of the Steering Committee except at the direction or with permission of Lead Counsel.

. . . 

Members of the Steering Committee shall consult with and operate under the direction of Lead Counsel in the prosecution of any and all potential common benefit claims and class claims, as well as coordinating the pretrial proceedings conducted by counsel for the individual Plaintiffs.

• • • Order Appointing Plaintiffs’ Leadership Structure, In re Onglyza (Saxagliptin) and Kombiglyze XR (Saxagliptin and Metformin) Prods. Liab. Litig., MDL No. 2809 (E.D. Ky. 2018). 

The duties of Plaintiffs’ Co-Lead Counsel are as follows:

• 1. Determine, based upon consultation with other members of Plaintiffs’ Executive and Steering Committees and other co-counsel, and present in the most efficient and reasonable fashion, to the Court and opposing parties the position of Plaintiffs on all matters arising during pretrial proceedings;
  2. Initiate and coordinate all pretrial discovery on behalf of Plaintiffs in actions consolidated in this multi-district litigation, including developing and proposing to the Court schedules for commencement, execution, and completion of all discovery on behalf of Plaintiffs;
  3. Submit and argue verbal and/or written motions presented to the Court on behalf of Plaintiffs’ Designated Counsel, and oppose any motion submitted by Defendants or other parties;
  4. Submit, if appropriate, additional counsel and/or committees for designation by the Court;
  5. Delegate specific tasks to other counsel in an effective and efficient manner that ensures the pretrial preparation for Plaintiffs is conducted efficiently, effectively, and economically;
  6. Enter into stipulations with opposing counsel necessary for the advancement and conduct of this litigation, which will be submitted to the Court for approval;
  7. Maintain adequate files of pretrial matters, establishing and maintaining document or exhibit depository, and ensuring those documents are available under reasonable terms and conditions for examination by all MDL plaintiffs and/or their respective counsel;
  8. Conduct settlement negotiations on behalf of Plaintiffs, without entering into binding agreements except to the extent expressly authorized;
  9. Hold meetings for Plaintiffs’ counsel for any appropriate purpose, including coordinating responses to questions of other parties or of the Court;
  10. Prepare and distribute periodic status reports to the parties;
  11. Coordinate responsibilities of Plaintiffs’ Designated Counsel, schedule leadership counsel meetings, appear at status conferences, and perform other necessary logistic and administrative functions as required, and carry out duties as ordered by this Court;
  12. Act as spokesperson for Plaintiffs at status conferences and pretrial proceedings and in response to any inquiries by the Court, subject to the right of any Plaintiffs’ counsel to present non-repetitive individual or differing positions;
  13. Maintain time and disbursement records covering services of Designated Counsel and establishing guidelines for approval by this Court as to the keeping of time records and expenses;
  14. Monitor the activities of co-counsel to ensure that schedules are met and unnecessary expenditures of time and funds are avoided; and
  15. Perform any such other duties as may be incidental to proper and efficient coordination of Plaintiffs’ pretrial proceedings or authorized by further order of this Court.

• Case Management Order No. 5, In re Blackbaud, Inc., Customer Data Breach Litig., MDL No. 2972 (D.S.C. 2021). 

• Corrected Case Management Order No. 4, In re Testosterone Replacement Therapy Prods. Liab. Litig., MDL No. 2545 (N.D. Ill. 2014). 

• Case Management Order No. 5, In re Blackbaud, Inc., Customer Data Breach Litig., MDL No. 2972 (D.S.C. 2021). 

1. 1. Discovery
      1. Initiate, coordinate, and conduct all pretrial discovery on behalf of Plaintiffs in all actions which are consolidated with the instant multidistrict litigation;
      2. Develop and propose to the court schedules for the commencement, execution, and completion of all discovery on behalf of all Plaintiffs;
      3. Cause to be issued in the name of all Plaintiffs the necessary discovery requests, motions, and subpoenas pertaining to any witnesses and documents needed to properly prepare for the pretrial discovery of relevant issues found in the pleadings of this litigation. Similar requests, notices, and subpoenas may be caused to be issued by the PSC upon written request by an individual attorney in order to assist them in the preparation of the pretrial stages of their client’s particular claims;
      4. Conduct all discovery in a coordinated, efficient, and consolidated manner on behalf and for the benefit of all Plaintiffs. No attorney for a Plaintiff may be excluded from attending the examination of witnesses and other proceedings. Such attorney may suggest questions to be posed to deponents through the designated PSC members provided that such questions are not repetitious;
   2. Hearings and Meetings
      1. Call meetings of counsel for Plaintiffs for any appropriate purpose, including coordinating responses to questions of other parties or the court. Initiate proposals, suggestions, schedules, or joint briefs, and any other appropriate matter(s) pertaining to pretrial proceedings;
      2. Examine witnesses and introduce evidence at hearings on behalf of Plaintiffs;
      3. Act as spokesperson for all Plaintiffs at pretrial proceedings and in response to any inquiries by the court, subject of course to the right of any Plaintiffs’ counsel to present non-repetitive individual or different positions;
   3. Miscellaneous
      1. Submit and argue any verbal or written motions presented to the court on behalf of the PSC as well as oppose when necessary any motions submitted by Defendant or other parties which involve matters within the sphere of the responsibilities of the PSC;
      2. Explore, develop, and pursue all settlement options pertaining to any claim or portion thereof of any case filed in this litigation;
      3. Maintain adequate files of all pretrial matters and have them available, under reasonable terms and conditions, for examination by Plaintiffs or their attorneys;
      4. Prepare periodic status reports summarizing the PSC’s work and progress. These reports shall be submitted to Plaintiffs’ Liaison Counsel who will promptly distribute copies to the other Plaintiffs’ attorneys;
      5. Perform any task necessary and proper for the PSC to accomplish its responsibilities as defined by the court’s orders; and
      6. Perform such other functions as may be expressly authorized by further orders of this court.

1. 1. • Order Appointing Plaintiffs’ Leadership Structure, In re Onglyza (Saxagliptin) and Kombiglyze XR (Saxagliptin and Metformin) Prods. Liab. Litig., MDL No. 2809 (E.D. Ky. 2018). 

1. 1. • Pretrial Order No. 20 at 14-17, In re Zantac (Ranitidine) Prods. Liab. Litig., MDL No. 2924 (S.D. Fla. 2020). 

Courts sometimes will appoint a plaintiffs’ executive committee (“PEC”), often consisting of three to five members, to assist with the leadership of an MDL. In some MDLs, the executive committee is comprised of the appointed lead counsel. See, e.g., Case Management Order No. 1, In re Fresenius Granuflo/Naturalyte Dialysate Prods. Liab. Litig., MDL No. 2428 (D. Mass. 2013) (“The Plaintiffs’ Executive Committee shall serve as Lead Counsel . . . .”). In others, the PEC operates as a distinct body from lead counsel, supporting lead counsel in managing the strategic direction and administration of the MDL but possessing its own decision-making power.

• Order No. 5, In re General Motors LLC Ignition Switch Litig., MDL No. 24543 (S.D.N.Y. 2014).

1. Executive Committee. The Court establishes an Executive Committee consisting of ten (10) counsel, who will be responsible for assisting Co-Lead Counsel with consolidated pleadings and motion practice; document management and review; electronic discovery issues; discovery issues generally; depositions; liaison with government actions and proceedings; expert witnesses; damages; bankruptcy coordination; non-GM defendants; communication with class members and coordination with personal injury/wrongful death actions; trial; and other issues as needs arise[].

• Order Appointing Plaintiffs’ Leadership Structure, In re Onglyza (Saxagliptin) and Kombiglyze XR (Saxagliptin and Metformin) Prods. Liab. Litig., MDL No. 2809 (E.D. Ky. 2018). 

Plaintiffs’ Executive Committee will work closely with Plaintiffs’ Co-Lead Counsel and Plaintiffs’ Liaison Counsel regarding management of the litigation, including assisting in organizing subcommittees and delegating tasks to subcommittees. Plaintiffs’ Executive Committee will also assist in scheduling meetings for Plaintiffs’ counsel, keeping minutes and/or records of Plaintiffs’ counsel meetings, and any other administrative functions as necessary.

Particularly when overseeing especially large or complex MDLs, some transferee courts choose to create both a PEC and a PSC. Where both a PEC and PSC exist, the PEC generally operates as a distinct entity from the PSC. The PEC typically focuses on strategic oversight and/or financial and administrative support, while the PSC focuses on operational execution in discovery, motions practice, and other key areas. See Bolch Guidelines, supra at 33–34. The idea is that it’s valuable to have a larger pool of leaders operating in parallel, at multiple levels.  At the same time, this approach has potential downsides, such as disputes over which responsibilities each committee is charged with, and greater administrative difficulty that comes with dispersed leadership. 

• Case Management Order No. 3A, In re Atrium Med. Corp. C-Qur Mesh Prods. Liab. Litig., MDL No. 2753 (D.N.H. 2017).

3) Plaintiffs’ Executive Committee
Jonathan D. Orent, Esq.
Todd Mathews, Esq.
David L. Selby II, Esq.
Adam M. Evans, Esq.
Anne Schiavone, Esq

3.1 Duties of Plaintiffs’ Executive Committee. The members of plaintiffs’ executive committee shall from time to time consult with plaintiffs’ lead and liaison counsel in coordinating the plaintiffs’ pretrial activities and in planning for trial. Plaintiffs’ executive committee will be responsible for the major decision-making in the litigation, oversight of spending, supervision and approval of common benefit hours, and organizing the greater plaintiffs’ steering committee into working committees. Plaintiffs’ executive committee will assign the plaintiffs’ steering committee with the various tasks essential to the litigation.

4) Plaintiffs’ Steering Committee 

4.1 Duties of Plaintiffs’ Steering Committee. Plaintiffs’ Steering Committee will assist with preparing briefs, conducting discovery, and various other necessary tasks required in this litigation. Plaintiffs’ Executive Committee will organize Plaintiffs’ Steering Committee and appoint additional members to Plaintiffs’ Steering Committee in their discretion, as needed.

Courts must confront whether to assign MDL leadership specific responsibilities vis-à-vis individually retained plaintiffs’ attorneys, sometimes called IRPAs. IRPAs are counsel retained by individual plaintiffs with cases in the MDL, typically prior to the transfer of a case to an MDL; unless appointed by the court, IRPAs are not part of plaintiffs’ leadership. For a leading discussion of IRPAs, see Judith Resnik et al., Individuals Within the Aggregate: Relationships, Representation, and Fees, 71 N.Y.U. L. Rev. 296, 309–20 (1996). Judges have taken several approaches in addressing this question.

(1) Liaison Counsel. Judges frequently appoint attorneys to serve as “liaison counsel” and require those attorneys, among other responsibilities, to manage communications between leadership and IRPAs. One study found that judges appoint liaison counsel in 46 percent of MDLs. See Noll, supra at 444. 

• Order No. 2 at 2-3, In re Yasmin & Yaz (Drospirenone) Mktg., Sales Practices, & Prods. Liab. Litig., MDL No. 2100 (S.D. Ill. 2011).

The responsibilities of Plaintiffs’ Liaison Counsel shall be the following: 

1. To serve as the recipient for all Court orders on behalf of all of the plaintiffs:
2. to coordinate service and filings for all plaintiffs whether presently included or subsequently added;
3. to maintain and distribute to co-counsel and to Defendants’ Counsel an up-to-date service list;
4. to receive and distribute pleadings, orders, and motions by overnight courier service and/or telecopier within two days after receipt, unless such service has been waived, in writing, by a receiving counsel (until some program for electronic service can be arranged and agreed upon);
5. to coordinate the establishment of a document depository, real or
6. virtual, to be available to all participating plaintiffs counsel;
7. to maintain and make available to all participating plaintiffs counsel of record at reasonable hours a complete file of all documents served by or upon each party (except such documents as may be available at a document depository);
8. to prepare agendas for court conferences and periodically report
9. regarding the status of the case; and
10. to carry out such other duties as the Court may order.

• Case Management Order No. 1, In re Fresenius Granuflo/Naturalyte Dialysate Prods. Liab. Litig., MDL No. 2428 (D. Mass. 2013). 

The Court appoints Anthony Tarricone as Plaintiffs’ Liaison Counsel. The Plaintiffs’ Liaison Counsel shall be responsible for providing communications between the court and other counsel (including receiving and distributing notices, orders, motions, and briefs on behalf of the group), convening meetings of counsel, advising parties of developments, and otherwise assisting in the coordination of activities and positions. Liaison counsel may act for the group in managing document depositories and in resolving scheduling conflicts.

• Case Management Order No. 5, In re Blackbaud, Inc., Customer Data Breach Litig., MDL No. 2972 (D.S.C. 2021). 

The court appoints Frank Ulmer of McCulley McCluer LLC as Plaintiffs’ Liaison Counsel. Liaison Counsel will be charged with administrative matters. Notwithstanding the appointment of Liaison Counsel, each counsel shall have the right to participate in all proceedings before the court as fully as such counsel deems necessary. Liaison Counsel shall not have the right to bind any party as to any matter without the consent of counsel for that party, except Liaison Counsel’s own clients. Further, Liaison Counsel shall remain free to represent the interests and positions of their clients free of any claim (including without limitation any claim of conflict) arising from service as Liaison Counsel. They will be expected to:

1. Act as the primary contact between the court and Plaintiffs’ counsel; 
2. Maintain an up-to-date, comprehensive Service List of Plaintiffs and promptly advise the court and defense counsel of changes to Plaintiffs’ Service List;
3. Receive and distribute to Plaintiffs’ counsel, as appropriate, orders, notices, and correspondence from the court, to the extent such documents are not electronically filed;
4. Receive and distribute to Plaintiffs’ counsel, as appropriate, discovery, pleadings, correspondence, and other documents from defense counsel that are not electronically filed;
5. Establish and maintain a document depository;
6. Maintain and make available to co-counsel at reasonable hours a complete file of all documents served by or upon each party;
7. Assist Co-Lead Counsel and the PSC in resolving scheduling conflicts among the parties and coordinating activities, discovery, meetings, and hearings;
8. Maintain a file-endorsed copy of this Order, and serve the same on the parties and/or their attorneys in any actions later instituted in, removed to, or transferred to, these proceedings;
9. Maintain records of receipts and disbursements advanced by members of the PSC and received by the PSC, and report in writing to the PSC concerning disbursements and receipts;
10. Act as the treasurer for any common benefit assessments and expenses; and 
11. Perform such other functions necessary to effectuate these responsibilities or as may be expressly authorized by further orders from the court.

• Pretrial Order No. 8, In re Philips Recalled CPAP, Bi-Level PAP, and Mechanical Ventilator Prods. Litig., MDL No. 3014 (W.D. Pa. 2022).

Responsibilities and Duties. Co-liaison counsel will be charged with essentially administrative functions as set forth in Section 10.221 of the Manual for Complex Litigation (Fourth). For example, co-liaison counsel shall be authorized to receive orders and notices from the court on behalf of all parties and shall be responsible for the preparation and transmittal of copies of such orders and notices to the parties and the performance of other tasks determined by the court. Co-liaison counsel shall be required to maintain complete files with copies of all documents served upon that counsel in hard copy or electronic form, and to make such files available to parties upon request. Co-liaison counsel are also authorized to receive orders and notices from the Panel pursuant to Rule 5.2(e) of the Panel’s Rules of Procedure or from the court on behalf of all parties and shall be responsible for the preparation and transmittal of copies of such orders and notices to the parties. . . . The co-liaison counsel shall be available for any conference convened by the court and should communicate the substance of any such conference to all other plaintiffs’ counsel in conjunction with co-lead counsel, if necessary.

• Case Management Order No. 3, In re Elmiron (Pentosan Polysulfate Sodium) Prods. Liab. Litig., MDL No. 2973 (D.N.J. 2021).

Plaintiffs’ Liaison Counsel. The responsibilities of Plaintiffs’ Liaison Counsel, certain of which were identified in CMO #1, shall be the following: 

1. To serve as the recipient for all Court Orders; 
2. To coordinate services and filings; 
3. To maintain and distribute to co-counsel and to Defendant’s Counsel an up-to-date service list; 
4. To make herself available for any telephone conferences convened by the Court and to communicate the substance of any such conference to all other Plaintiffs’ counsel; 
5. To receive and distribute pleadings, Orders, and motions; f. To maintain and make available to all Plaintiffs’ counsel of record at reasonable hours a complete file of all documents served by or upon each party (except such documents as may be available at a document depository); 
6. To make themselves available for any telephone conferences convened by the Court and to communicate the substance of any such telephone conference to all other Plaintiffs’ counsel; 
7. To carry out any and all duties identified by the Court in Case Management Order #1; and 
8. To carry out such other duties as the Court may Order.

• Order Appointing Plaintiffs’ Leadership Structure, In re Onglyza (Saxagliptin) and Kombiglyze XR (Saxagliptin and Metformin) Prods. Liab. Litig., MDL No. 2809 (E.D. Ky. 2018). 

The duties of Liaison Counsel are as follows:

1. Maintain and distribute up-to-date service list to co-counsel and Defendants’ Liaison Counsel;
2. Receive and distribute to co-counsel Orders from the Court, and documents from opposing parties and counsel;
3. Coordinate the establishment of a document depository, maintain and make available to co-counsel and other Plaintiffs’ counsel a complete electronic file of all documents served by or upon parties;
4. Submit necessary documents to the Court and the Clerk of the Court; and 
5. Any other such duties as Ordered by this Court.

(2) Some judges require leadership attorneys in general (rather than, or in addition to, specifically designated liaison counsel) to consult with IRPAs to ensure that there are open lines of communication and that all plaintiffs’ interests are adequately represented. 

• Case Management Order No. 87, In re Ashley Madison Customer Data Sec. Breach Litig., MDL No. 2669 (E.D. Mo. 2016).

IT IS FURTHER ORDERED that in carrying out the above 

duties, Plaintiffs’ Co-Lead Counsel are particularly required to consult with all Plaintiffs’ counsel throughout this case to assure that all interests are represented.

(3) Some judges create a formal process for IRPAs to object to leaders’ actions. (Again, as above, these judges may also assign liaison counsel specifically tasked with communicating with IRPAs.) That approach better ensures that each plaintiff will be able to be heard. But it can also increase a court’s administrative burden and delay proceedings while objections are considered and resolved.

• Case Management Order No. 3A, In re Atrium Med. Corp. C-Qur Mesh Prods. Liab. Litig., MDL No. 2753 (D.N.H. 2017).

Disagreements with Lead Counsel. Counsel for plaintiffs who disagree with Lead Counsel (or those acting on behalf of Lead Counsel) or who have individual or divergent positions may present written and oral arguments, conduct examinations of deponents, and otherwise act separately on behalf of their clients as appropriate, provided that in doing so they do not repeat arguments, questions, or actions of Lead Counsel.

Even where courts assign responsibilities to plaintiffs’ leadership relative to IRPAs, to protect the PSC and avoid confusion, courts sometimes distinguish the responsibilities of plaintiffs’ leadership in directing the MDL from the ongoing attorney-client relationship and other duties owed by IRPAs to individual plaintiffs.

• Case Management Order No. 3, In re Elmiron (Pentosan Polysulfate Sodium) Prods. Liab. Litig., MDL No. 2973 (D.N.J. 2021).

Under no circumstances are Co-Lead counsel, the [Plaintiffs’ Executive Committee], or any member of the PSC responsible for the filings, discovery, or any other issue or matter related to an individual plaintiff’s case or claim. More specifically, the PSC is in no way responsible for the attorney-client relationship and the duties and responsibilities each individual attorney or law firm owe to their clients in prosecution of their individual case.