Practical considerations for national coordinating counsel in complex litigation: the role of national coordinating counsel in complex litigation is multifaceted, with an approach to keep everyone of the same page from the beginning to end.

• Author: Weiss, Christopher N.

CORPORATIONS increasingly face lawsuits by groups of claimants, rather than cases pursued by individuals. Group claims are typically filed either as class actions or in clusters of individual filings or multi-plaintiff single cases in which a large number of claimants are represented jointly by a single set of lawyers. Group claims filed in one jurisdiction often prompt similar group claims filed by different law finns in different states.

Some plaintiffs' counsel prefer a particular federal forum; others like their local state court. To defeat an attempt to remove cases from a perceived favorable state court venue to federal court, state cases regularly include a locally based vendor or other resident-defendant, thereby defeating federal diversity of citizenship jurisdiction. It is not unusual for a corporation to be required to mount a defense to multiple cases pending simultaneously in both federal and state venues.

Numerous factors account for this increase in multijurisdictional lawsuits, perhaps most important being the Internet's facilitation of access to information and its creation of a fast, inexpensive and global portal for communication with prospective and actual claimants. In the United States, more lawyers than ever are practicing in these fields, with a not so surprising corresponding increase in litigation. Legal publishers closely track dozens of types of specific litigation--for instance, Mealey's and Andrews publications on securities, toxic torts and pharmaceuticals--enabling counsel access to case developments, theories and experts.

THE STAKES

Group litigation increases the potential recovery for claimants' attorneys, although not necessarily for the individual claimant. For lawyers working on a contingent fee basis, the potential fee is frequently increased as a function of the size of the client group, with seven-figure fee awards not uncommon. And with large fee awards cached as working capital, the plaintiffs' bar is better funded to take on the substantial legal and financial challenges of complex claims against a variety of targeted industries and products. Legal claims include the traditional realms of products liability (1) and shareholder litigation, but they now press corporate defendants on employment and compensation practices, including allegations of discrimination, wage and hour violations, employee benefits and stock option plans.

Dozens to thousands of claimants are presented in multijurisdictional and class action litigation, with each plaintiff or putative class member seeking monetary and/ or non-monetary remedies. Because of the number of claimants, such filings attract more attention by the media and investors. Corporate reputations are impacted to a far greater degree by group litigation, a consideration that goes beyond the reserves that must be set asidfe for such claims.

With the stakes so high, at the inception of multijurisdictional or class action litigation, corporate counsel is well advised to involve several professionals for the company's initial response, including national coordinating counsel, the corporate risk manager responsible for insurance notification and coordination, and the company's public relations director and/or an outside public relations firm to respond to media, investor and other inquiries.

THE ROLE OF NATIONAL COORDINATING COUNSEL

One of a defendant company's first steps in responding to multijurisdictional litigation is designating its national coordinating counsel. (2) That role can be filled by in-house corporate counsel or a private law firm.

National coordinating counsel serves as the principal point of contact on litigation matters with general counsel and the officers and directors of the company. The lawyer or lawyers selected should have the experience not only in managing class action or mass tort dockets, or both, but they also must have litigation technologies and staffing support to manage huge volumes of paper documents and electronic data. (3)

National coordinating counsel performs a number of essential functions.

1. Global and Unifying Litigation Strategy

   With corporate counsel, national coordinating counsel formulates, implements and supervises an over-all litigation strategy for the multiple case filings. Although each case will not be handled identically, it is essential for the defendant to maintain consistent positions on its central factual and legal themes. (4) Procedural strategies also require a coordinated approach that seeks to manage the status of the different cases toward defined objectives--for example, a negotiated settlement of all claims, a successful trial in one or more cases, or both.

   The prospect of collateral estoppel is a key reason national coordinating counsel and corporate counsel must monitor and adjust the global litigation strategy consistently for all cases.

   Litigation strategy also must be harmonized with the values and business objectives of the company.

2. Identification and Supervision of Local Counsel

   National coordinating counsel plays a key role in the identification, recommendation and engagement of local counsel in the venues in which cases have been filed. (5) Charged with managing the global case strategy, coordinating counsel is best situated to supervise local counsel's work on the specific cases. Similar issues will arise across the cases, allowing national coordinating counsel to communicate how such issues should be addressed.

3. Procedural Strategies

   Several docket management options are available to a defendant facing multijurisdictional litigation, including: (1) consolidation of actions pursuant to Rule 42(a) of the Federal Rules of Civil Procedure; (2) using the multidistrict litigation proceeding (MDL) available under 28 U.S.C. [section] 1407; using class actions under Federal Rule 23; and (4) motions for stay.

   Federal judges and national coordinating counsel often take guidance from the Federal Judicial Center's Manual for Complex Litigation (4th ed. 2004) as a resource for formulating case management orders.

   Consolidation. Consolidation allows multiple independent cases to be joined for purposes of pretrial, trial or both. During the late 1980s in King County, Washington, the crush of several hundred separate asbestos personal injury cases prompted the state trial court to formulate what it termed accelerated case review rules, which consolidated groups of cases, usually dozens of individual filings, for pretrial discovery, settlement and trial purposes. Similar consolidations have taken place in major metropolitan state courts across the country and at the federal level in a variety of mass tort contexts.

   Multidistrict Litigation. Section 1407 authorizes federal courts through the Judicial Panel on Multidistrict Litigation to transfer federal cases to a single district for consolidation and coordination of pretrial proceedings. Follow-on orders allow for the transfer of new case filings to the MDL court. On completion of the defined pretrial phase, the MDL court issues remand orders transferring individual cases back to their originating districts.

   A defendant must assess closely whether it favors or opposes MDL status for multiple federal cases. For example, MDL consolidation increases the likelihood of certification of a national class action in appropriate cases. On the other hand, if federal lawsuits have reached a substantial number and cover a large geographic area, MDL...