In multidistrict litigation (MDL), two or more separate but related cases are coordinated in a single proceeding for pretrial purposes of discovery and motion practice. The MDL court and parties often agree early in the litigation that plaintiffs will file a master complaint, which contains allegations suitable for adoption by reference in each individual case. Parties agree to file a master compliant and a master answer because it is efficient to do so. Otherwise, they would have to draft individual complaints and answers in every case coordinated before the MDL – which could require filing hundreds or thousands of pleadings.

Master pleadings promote judicial efficiency and economy. They provide the MDL court with a summary of the claims and defenses, and they alleviate the administrative burden of managing potentially hundreds or thousands of individual complaints and answers.

A series of recent decisions in July, April, and February of this year in the In re Dicamba Herbicides Litigation demonstrate the benefits of challenging master complaints in coordinated proceedings.¹ In In re Dicamba, multiple farmers alleged damage to their crops by the herbicide dicamba. Defendants moved to dismiss the master complaint and a related complaint, successfully obtaining dismissal of more than 30 claims and significantly narrowing the issues in the litigation.

However, there a number of considerations in challenging a master complaint. First, there is disagreement among MDL courts about the role of a master complaint. Some MDL courts view a master complaint as an administrative device that "should not be given the status of an ordinary complaint."²According to these MDL courts, a master complaint should not be subject to a motion to dismiss or other motion practice because it reflects a compromise among individual complaints. These MDL courts especially disfavor motions that turn on factual allegations or issues of state law that may not apply to all plaintiffs.

Other MDL courts take a different approach. They will entertain motion practice at the pleading stage where a motion to dismiss or other motion addresses issues common to all or a significant number of plaintiffs. Many MDL courts have dismissed all or some causes of action on a motion to dismiss, which can eliminate entire MDLs at the pleading stage, or narrow the issues and scope of discovery.³ 

Second, the operative effect of a master complaint depends on the intent of the MDL court and parties. As the US Supreme Court recognized in Gelboim v. Bank of America Corporation:

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. 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."⁴

Thus, it is up to the MDL court and parties to determine whether a master complaint may be used as a mechanism to determine common issues.

Given all of this, there are a number of strategies defendants can use to challenge a master complaint:

• Identify potential challenges early and litigate them before coordination, if possible. It is never too early to develop litigation defenses and think creatively about ways to present key issues to an MDL court. Even before an MDL is formed, defendants should consider potential bases for challenging a master complaint, including insufficiency of the pleadings, preemption, personal jurisdiction, or other grounds. In some instances, defendants can litigate these issues in individual cases prior to coordination in an MDL, building a record of favorable decisions; then this record may be deployed to ask an MDL court to consider a similar motion directed at a master complaint.
• Educate the MDL court about the value of early motion practice. Most MDL courts, whether they are overseeing their first MDL or their sixth, welcome input from the parties on the pretrial orders they should implement to manage the MDL.Defendants should seize every opportunity at case management conferences and in written submissions to educate the MDL court on the issues defendants consider suitable for resolution on a motion to dismiss or other early motion practice. The MDL court will be more inclined to entertain a motion to dismiss, or other motion, if defendants have explained how the motion will facilitate resolution of all or a significant number of claims.
• Include language in the proposed pretrial order governing master pleadings that the master complaint supersedes all prior pleadings. Defendants should insist that any proposed pretrial order governing master pleadings include language stating that the master complaint supersedes all prior pleadings.This language informs the MDL court that the parties view the master complaint as merging the individual cases for the duration of the MDL, and it makes clear that the master complaint has legal effect and can be challenged on a motion to dismiss or other motion.
• Adopt a thoughtful and tactical approach to challenging a master complaint. It is possible to prevail on a motion to dismiss at the pleading stage and dismiss an entire MDL; however, it is a rare achievement. Too often, defendants view challenging a master complaint as an all-or-nothing exercise, in which they either move for dismissal of all claims or do not move to dismiss at all. But challenging a master complaint in part can be an effective tool to narrow the issues at trial and scope of discovery. For example, in mass tort litigation, plaintiffs often allege fraud-based claims without satisfying the heightened pleading standard required by Federal Rule of Civil Procedure 9(b). Defendants often refrain from challenging these claims because they believe the MDL court will allow the claims to proceed because of the difficulty plaintiffs face in alleging particular misrepresentations or fraud applicable to all or most plaintiffs. But some MDL courts have been receptive to these challenges, ⁵ and defendants should try to narrow the issues and scope of discovery, however possible.Even if defendants do not prevail, they will benefit from the opportunity of engaging the MDL court early in the litigation and educating it on the key issues in the litigation, which will certainly come back into play in discovery and subsequent motion practice.

There are a number of creative ways in which defendants have challenged master complaints in MDLs. By laying the appropriate groundwork, defendants can increase their likelihood of success in early motion practice and significantly affect the course of the litigation.

An earlier version of this appeared on Law360 on September 12, 2019.

¹ _{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 plaintiffs’ third amended complaint); Bader Farms, Inc. v. Monsanto Co. et al., 1:16-CV-299-SNLJ, 2018 WL 1784394 (E.D. Mo. Apr. 13, 2018) (granting in part defendants' motion to dismiss plaintiffs' second amended complaint); In re Dicamba Herbicides Litig., 359 F.Supp.3d 711 (E.D. Mo. 2019) (granting in part defendants' motion to dismiss plaintiffs' master complaint).}
² _{In re Vioxx Prods. Liab. Litig., 239 F.R.D. 450, 454 (E.D. La. 2006); see also In re Nuvaring Prods. Liab. Litig., No. 4:08-MD-1964 RWS, 2009 WL 2425391 (E.D. Mo. Aug. 6, 2009).}
³ _{See, e.g., In re Bridgestone/Firestone, Inc. Tires Prods. Liab. Litig., 155 F. Supp. 2d 1069 (S.D. Ind. 2001); In re Zofran (Ondansetron) Prods. Liab. Litig., No. 1:15-md-2657-FDS, 2018 WL 2291316 (D. Mass. May 18, 2018).}
⁴ _{135 S. Ct. 897, 902 n.3 (2015) (quoting In re Refrigerant Compressors Antitrust Litigation, 731 F.3d 586, 590–592 (6th Cir. 2013)).}
⁵ _{See, e.g., In re Trasylol Prods. Liab. Litig., No. 08-MD-1928, 2009 WL 577726 (S.D. Fla. Mar. 5, 2009).}