Ever since the In Re NuvaRing Prods. Liab. Litig. MDL, more than a decade ago, we have had concerns about the use of master pleadings in MDLs. On one hand, the requirement to file a master complaint, and answer, seems to offer some efficiency gains and ease the administrative burden on transferee courts. On the other hand, if not handled properly, such procedures risk depriving defendants of their due process rights and rendering Federal Rules 8, 9, and 12 a nullity. Plaintiffs want to adopt portions of a master complaint, but do not want their individual claim to be subject to the normal and proper scrutiny required under Twombly and Iqbal. At the least, the master pleading must be subject to close scrutiny. E.g., Bader Farms, Inc. v. Monsanto Co. et al., No. 1:18-md-2820-SNLJ, 2019 WL 3017425 (E.D. Mo. July 10, 2019) (granting in part defendants’ motion to dismiss amended complaint). Even that scrutiny may be insufficient if motion issues may turn on factual allegations not common to every plaintiff (such as date of use of a product), and/or issues of state law that may not apply to all plaintiffs. And when plaintiff lawyers need only check boxes on “short form” complaints, they don’t need to know, often don’t know, and thus don’t assert, facts about their clients regarding the claims they are selecting. Even worse are MDLs in which the court views a master complaint as purely an administrative device that should not be given the status of an ordinary complaint, yet not allowing individual complaints as subject to a motion to dismiss or other motion practice.
This issue has generated some interest among reform-focused groups. For those interested in this topic, we note the recent decision, Bell v. Publix Super Markets, Inc., 982 F.3d 468 (7th Cir. Dec. 7, 2020). It’s not our usual MDL context, arising from claims about Grated Parmesan Cheese. But there is a discussion of the dismissal of “consolidated” MDL complaints that merits some attention.
The court of appeals confirmed that the pleadings were not a mere administrative convenience, but treated by the parties and court below as the operative pleadings. Coordinated or consolidated pretrial proceedings can be used, observed the court, to streamline litigation, to manage discovery to avoid duplication and waste, and to narrow issues by agreement or by motions to dismiss or for summary judgment, and especially by settlement. 982 F.3d at 489. The default rule is that separate actions transferred for those pretrial proceedings retain their separate identities, especially for purposes of entering final judgments and pursuing appeals. Yet transferee courts and parties may choose to manage those cases in ways that can change that default rule and give up the separate identities of the original suits transferred to the MDL litigation. See, e.g., In re Refrigerant Compressors Antitrust Litig., 731 F.3d 586, 588 (6th Cir. 2013) (one category of antitrust plaintiffs—indirect purchasers—filed a single “consolidated amended complaint” that combined all of their allegations; dismissal of some indirect purchasers’ claims were not final judgments while other claims asserted in the consolidated amended complaint remained pending).
Citing Gelboim v. Bank of America Corp., 574 U.S. 405, 413 n.3 (2015), the circuit court said parties may elect to file a “master complaint” and a corresponding “consolidated answer,” which supersede prior individual pleadings. In such a case, the transferee court may treat the master pleadings as merging the discrete actions for the duration of the MDL pretrial proceedings. In re Refrigerant Compressors Antitrust Litigation, 731 F.3d at 590–92. No merger occurs, however, when the master complaint is not meant to be a pleading with legal effect but only an administrative summary of the claims brought by all the plaintiffs.
That approach focuses pragmatically on the behavior of the district court and the parties to determine whether they treated the consolidated complaint as the “operative pleading” or merely “an administrative summary.” This approach holds the court and the parties to their actions to prevent them from “springing traps” by treating a consolidated complaint as the real complaint in the district court but then denying its importance and effect once a party tries to appeal. The dangers of ambiguity can be avoided if the court and the parties decide explicitly, from the beginning, the legal status of the consolidated or master complaint. At the outset of a multidistrict litigation, all parties have an interest in knowing when and how appellate rights may be triggered or lost. And defendants need to assert their right to move, or clearly preserve their objection to not getting a fair chance.