New York Adopts Procedures For Statewide Coordination Of Complex Litigation B Y M ARK H ERRMANN AND G EOFFREY J. R ITTS sive criteria the Panel will consider in deciding whether F or lawyers practicing in the areas of complex or mass-tort litigation, familiarity with the new Liti- to coordinate cases: gation Coordinating Panel and its rules will be es- • The complexity of the actions; sential. Attorneys acquainted with the federal Judicial • Whether common questions of fact or law exist; Panel on Multidistrict Litigation will find similarities • The importance of the common questions to the de- between the federal and state procedures, but must un- termination of the cases; derstand important differences as well. • The risk that coordination may delay the actions or The process of establishing the new approach began increase expense for the parties; in January 2002 when the Uniform Civil Rules of the • The risk of duplicative or inconsistent rulings, or- Supreme and County Courts were amended to add a ders or judgments if the cases are not coordinated; new § 202.69 (22 N.Y.C.R.R. § 202.69), entitled “Coordi- • The convenience of the parties, witnesses and nation of Related Actions Pending in More Than One Ju- counsel; dicial District.” The section established a framework to • Whether coordinated discovery would be advanta- allow related lawsuits filed in different judicial districts geous; to be coordinated for pretrial proceedings – and in some • Judicial economy; instances for trial as well – before a single judge. • The manageability of coordinated litigation; Section 202.69(b) created a Litigation Coordinating • Whether issues of insurance, limits on assets and Panel, the members of which have now been selected. potential bankruptcy can be best addressed in coordi- On June 2, 2003, the Panel adopted rules governing nated proceedings; and practice before it. 1 These rules lay out a map for practi- tioners to follow when seeking coordination of related cases pending in different state courts. M ARK H ERRMANN is a partner in the international law firm Jones Day in Role of the Litigation Coordinating Panel Cleveland. He received his bachelor’s Under § 202.69(b)(2), the Panel is given the power to degree from Princeton University direct coordination of proceedings in related cases pend- and his J.D. from the University of Michigan. ing in different New York state courts. One justice of the Supreme Court from each judicial department sits on the Panel. The chief administrator of the courts, in consulta- tion with the presiding justice of each Appellate Divi- sion, chooses its members. At present, they are Justices G EOFFREY J. R ITTS is a partner at Jones Helen E. Freedman of the First Department, Joseph J. Day. He received his bachelor’s degree Maltese of the Second Department, E. Michael Kavanagh and his J.D. from Yale University. of the Third Department, and Raymond E. Cornelius of Both co-authored the recently pub- the Fourth Department. Section 202.69 does not set any lished Statewide Coordinated Proceed- particular term for justices serving on the Panel. ings: State Court Analogues to the Federal Although § 202.69 permits the Panel to establish its MDL Process (Andrews Pubs. 2003). own rules of procedure, the Uniform Rule itself lays out The views expressed in this article are those of the au- the basic structure of the coordination process. It calls thors and not necessarily those of their clients or firm. upon the Panel to determine, either sua sponte or upon the motion of a litigant, trial judge or administrative judge, whether related actions should be coordinated Reprinted with permission from the New York State Bar Association before one or more justices. 2 The section lists non-exclu- Journal , October 2003, Vol. 75, No. 8, published by the New York State Bar Association, One Elk Street, Albany, New York 12207. 20 Journal | October 2003
New Rules of the Panel • The pendency of related matters in federal courts or other states’ courts. 3 The new Procedures of the Litigation Coordinating Panel expand upon § 202.69 by providing specific rules The Panel decides whether one or more “coordinat- covering such matters as filing motions before the Panel, ing justices” should be appointed to preside over the re- the Panel’s hearing and decision process, and the treat- lated cases, and selects the county or counties where the coordinated proceedings will be venued. 4 Unlike the ment of later-filed related cases. 13 federal Multidistrict Litigation (MDL) system, under The Office of the Litigation Coordinating Panel has which the Judicial Panel on Multidistrict Litigation been established in the Supreme Court of New York (JPML) chooses the judge who will preside over an County. Papers and proceedings before the Panel, de- MDL, the state court Litigation Coordinating Panel does scribed below, are to be filed in this office. The Panel has not select the coordinating justice. 5 That selection is designated Pablo Rivera as clerk of the Panel, and par- made by the “Administrative Judge charged with su- ties are permitted to communicate with the clerk by mail, telephone, facsimile or e-mail. 14 pervision of the local jurisdiction within which coordi- nated proceedings are to take place, . . . in consultation The procedures provide three ways to trigger a coor- with the appropriate Deputy Chief Administrative dinated proceeding: (1) by request of a presiding justice Judge.” 6 or an administrative judge, (2) by sua sponte action of the Panel or (3) by a party’s motion. A justice who is presid- The Role of the Coordinating Justice ing over an action that he or she believes should be co- After transfer by the Panel, the coordinating justice ordinated with others, or an administrative judge in has broad power over pretrial matters, just as federal whose district such a case is pending, may submit to the judges do when presiding over MDLs. 7 The rule autho- Panel a letter application seeking coordination. The let- rizes a coordinating justice to take certain steps to ter must, “to the maximum extent possible,” identify the streamline litigation; among other things, the judge may purportedly related actions by caption, index number create a central file and docket, issue case management and county, and must name the attorneys for all the par- orders, appoint a steering committee, establish a docu- ties in the actions. 15 The letter application will be sub- ment depository, and direct the parties to prepare coor- mitted to the parties for them to respond in accordance dinated pleadings and uniform discovery requests. 8 The with a schedule to be provided by the Panel. coordinating judge has the authority to rule on disposi- If the Panel wishes to raise the question of coordina- tive motions and to “require the parties to participate in tion sua sponte , it will issue an order to show cause to all settlement discussions and court-annexed alternative the parties in the subject cases, calling upon them to dispute resolution.” 9 show why coordination should or should not be or- The coordinating justice will usually decide when the dered. 16 coordination process ends, because he or she “may ter- A party applying for coordinated treatment of cases minate coordination, in whole or in part, if the justice must file a motion for an order of coordination. The mo- determines that coordination has been completed or tion is filed under the caption of the actions proposed to that the purposes of this section can be best advanced by be coordinated, but is returnable before the Panel. Mov- termination of the coordination.” 10 In an interesting ing papers must identify by caption, index number and twist on federal practice, the coordinating justice is ex- county all of the cases for which coordination is sought pressly allowed to try all or part of any coordinated case and the names and addresses of all counsel in those if the parties consent; under federal MDL practice, cases cases. A copy of the moving papers must be served on must be remanded to their original courts for trial. 11 the parties and also on the justices presiding over each allegedly related case. The Panel will issue a briefing One beneficial feature of § 202.69 is its requirement schedule for the motion. 17 Submissions must address that a coordinating justice work to coordinate complex the standards for coordination listed in § 202.69(b)(3), litigation in the New York court system with similar such as complexity of the actions, the existence of com- cases pending in other states or in the federal system. mon legal or factual questions, and so forth. 18 An origi- The rule makes this an affirmative mandate for the co- nal and four copies of all papers relating to an applica- ordinating justice, who must, in such a circumstance, tion for coordination must be filed with the Panel’s . . . consult with the presiding judge(s) in an effort to ad- clerk. 19 vance the purposes of this section. Where appropriate, The Panel may, but need not, allow for oral argument the Coordinating Justice, while respecting the rights of of an application for coordination. 20 The Panel, or any parties under the Civil Practice Law and Rules, may re- justice on the Panel, can stay proceedings in any of the quire that discovery in the cases coordinated pursuant actions for which coordination is sought, pending the to this section proceed jointly or in coordination with discovery in the federal or other states’ actions. 12 Panel’s decision on the application. Unless such a stay is Journal | October 2003 21
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