Does Proposed Federal Rule of Civil Procedure 16.1 Need to Be De-DEIed?: A New Ethics Complaint Against an MDL Judge Raises the Question

An ethics complaint was recently filed against a multi-district litigation (MDL) judge who sought “adequate female representation” on the leadership team she is appointing to run the plaintiff side of the litigation. These MDL leadership positions are plum assignments: they come not only with prestige, but often with millions of dollars of extra compensation because the other lawyers in the multidistrict litigation are taxed—through so-called “common benefit fees”—to pay the leadership team for their work.

The complaint crystalized a concern that I have had for years: like many others, MDL judges caught the diversity bug and have been “demanding that parties provide information regarding the demographic composition of litigation teams and consider this information as they select lead and class counsel.” Justice Alito warned judges that this is likely unconstitutional in a statement respecting the denial of certiorari in a case called Martin v. Blessing, but they have not listened. In all the years that I have raised concerns about this, the only legal defense I have ever heard of the practice is that MDL judges have not adopted “quotas.” But, as Harvard found out the hard way, the Constitution prohibits using race or sex as one factor among many just as surely as it does “quotas.”

As it happens, there is currently sitting before the Supreme Court the first ever rule of civil procedure that would specially govern MDL cases, proposed Federal Rule of Civil Procedure 16.1. The rule is relatively uncontroversial because it seeks only to codify existing MDL practices. One of these practices is for judges assigned an MDL to appoint a leadership team to run the case for the plaintiff side (see proposed rule 16.1(b)(2)(A)). Although the proposed rule does not explicitly say that judges should consider race and sex diversity in these appointments, the Advisory Committee Note does say this: “In undertaking this process, a transferee judge should consider the benefits of geographical distribution as well as differing experiences, skills, knowledge, and backgrounds.” I am not sure what the word “background” is supposed to mean here that is not covered by the other words in the sentence. But given the current prevalence of the diversity bug among MDL judges, I wonder if they will see this sentence as a green light to continue their current practices?

The Court will decide whether to transmit the new rule to Congress by May 1. In order to prevent more judges from getting into trouble, it might be wise to modify the sentence in the Notes to make clear that judges should not be using race and sex when they select leadership lawyers. Or maybe the sentence should be stricken altogether. Indeed, there is an analogous provision already in the rules for the appointment of class counsel, Rule 23(g), and that rule contains no encouragement to consider a lawyer’s “background.”