Effective strategies for challenging master complaints in multidistrict litigation
16 September 2019, by Jessica C. Wilson
16 September 2019, by Jessica C. Wilson
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:
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).