On The Case

‘The needle is moving’: Another MDL judge cites diversity in lead counsel appointments

(Reuters) - U.S. District Judge Brian Martinotti of Newark named the plaintiffs' lawyers who will lead multidistrict litigation over Janssen’s interstitial cystitis drug Elmiron on Friday. The judge picked three lawyers to head the steering committee. Two of them – Parvin Aminolroaya of Seeger Weiss and Virginia Anello of Douglas & London – are women. So are the two court-appointed liaisons between state and federal plaintiffs and five of the seven lawyers on the plaintiffs’ executive committee. In fact, nearly three-quarters of the plaintiffs' lawyers who will run the Elmiron MDL are women.

And that’s no accident. Judge Martinotti’s first pre-trial order in the 170-case MDL explicitly called on plaintiffs' lawyers to propose a leadership slate that was “diverse in gender, ethnicity, geography and experience. In their joint leadership proposal, plaintiffs' lawyers made diversity a key selling point. They told the judge that they had taken very seriously his “repeated directives regarding inclusiveness and diversity,” and had proposed “arguably one of the most diverse (plaintiffs’ steering committees) of which movants are aware.” Judge Martinotti’s second pre-trial order, in turn, acknowledged that plaintiffs’ lawyers had constructed their proposed committee “in accordance with the court’s directives to focus on diversity.”

Judge Martinotti is at least the second MDL judge in the past year to call for diversity in plaintiffs’ leadership. As my colleague Nate Raymond reported last May, U.S. District Judge Robin Rosenberg of West Palm Beach appointed 13 women among the 24 lawyers she picked to head the case, specifically explaining that she wanted to promote diversity. Two judges overseeing securities class action – U.S. District Judge James Donato of San Francisco in the Robinhood case and U.S. District Judge Algenon Marbley of Columbus, Ohio in a case against First Energy – have also made a specific point of requiring diversity from plaintiffs' firms appointed to lead the suits.

“The needle is moving,” said Rutgers law professor Stacy Hawkins, who served as the reporter on Inclusivity and Excellence, a project by George Washington Law School to develop guidelines and best practices for judges overseeing MDLs and class actions. The project, which began at Duke Law School’s Center for Judicial Studies and moved to George Washington last summer, was prompted by studies showing the dearth of women and other diverse lawyers from top leadership ranks, despite the increasingly diverse demographics of the bar.

The draft guidelines published in Sept. 2020 pointed out that a few judges can make a big difference: “If more judges identify diverse lawyers for consideration for leadership appointments, the ripple effect, including on the law firms and corporations involved in these complex litigations, could be significant,” the guidelines said. In that context, Hawkins said, Judge Martinotti’s emphasis on diversity in the Elmiron MDL is a very welcome development.

Law professor Elizabeth Burch of the University of Georgia, who has written extensively about the concentration of power among “repeat players” in MDLs, said gender diversity is particularly important in cases in which most of the plaintiffs are likely to be women. “Studies have shown that gender can matter where gender itself is an issue in the proceedings,” Burch said via email. (Burch generally supports what she calls “cognitive diversity,” or the appointment of lawyers with varying skills and experiences, but said that “identity diversity” can produce the same benefits.)

Promoting diversity through leadership appointments is not without controversy. As you may recall, the first judge to adopt a policy of demanding diversity from plaintiffs' lawyers seeking leadership appointments was U.S. District Judge Harold Baer of Manhattan. In 2013, an objector in a class action overseen by Judge Baer asked the U.S. Supreme Court to review his diversity policy, arguing that it was discriminatory. The Supreme Court declined to grant review, but Justice Samuel Alito warned in a statement accompanying the denial that Judge Baer’s policy was probably unconstitutional. (Judge Baer, who died in 2014, told Reuters that Justice Alito seemed to lack “either understanding or interest” in discrimination against Black, Latino and women lawyers.”)

Rutgers’ Hawkins said she’s braced for new challenges to judges’ diversity orders, no matter how artfully judges phrase such demands. The George Washington guidelines specifically caution that judges cannot base MDL and class action appointments solely on diversity. But there is ample case law, the guidelines said, to back “affirmative efforts to promote diversity (as a factor) in merits-based evaluations” for case leadership.

Hawkins said she hopes the federal Judicial Conference Committee on Court Administration and Case Management eventually adopts a model rule codifying the GW guidance to assure diverse lawyers are applying for leadership roles in class actions and MDLs. Until then, she said, the goal is to influence individual judges. Appointments like those in the Zantac and Elmiron MDLs suggest the push for diverse appointments is having a effect.

Kristen Fournier and Bruce Hurley of King & Spalding are lead counsel for Janssen in the MDL, which alleges that Elmiron causes vision problems. A spokesperson for J&J said “we are confident in the overall safety profile of Elmiron. We will continue to defend against these allegations.”