Women Lawyers Leading MDLs

Why there aren't nearly enough of them

This week I write about a subject near and dear to my heart: the number of women leading Multidistrict Litigation (MDL) cases. I worked in MDLs for the majority of my over 25-year career, and I’m only beginning to see small changes in the number of women who lead these cases. It’s definitely worth asking why this is the case.

If you’re not involved in MDLs—or if you’re not a litigator—you might wonder why this subject matters to other women lawyers. There are lots of reasons. Although it hasn’t always been the case, MDLs now dominate the civil litigation filed in federal courts. In the early 2010s, about 30% of civil cases were in MDLs. In 2017 that number grew to nearly 50%, and it now stands at more than 70%. In short, if we want to change what representation looks like in the federal court system, we need to change what MDLs look like.

In addition, MDLs tend to be the largest and most sophisticated litigation in the federal courts. For that reason, the Judicial Panel on Multidistrict Litigation (JPML) sends these cases to the smartest and most capable federal judges. The lawyers on the other side of the v. are from the country’s top law firms, and are practice leaders, subject matter experts, and known by their corporate clients to be the people to hire for “bet the company” litigation. (It’s no longer unusual for larger MDL cases to settle for billions of dollars.) The issues litigated in MDLs often test the boundaries of existing law. And MDLs get a fair amount of media attention.

In short, we should care about who is leading these cases because the stakes are high.

The Miniscule Number of Women Who Lead MDLs

Because MDLs are large, complex, and expensive, groups of lawyers tend to be appointed to run them. At the top are lead counsel or, more typically in large cases, co-lead counsel. These are the lawyers at the top of the pyramid who provide strategic direction and divvy up the work amongst other lawyers. Importantly, they are also the lawyers who will negotiate settlements and the attendant attorneys’ fees. Underneath lead counsel is usually a committee (often called the Plaintiffs Executive Committee, or PEC) that provides assistance to leadership in litigating the MDL. Then, in unusually complex cases, there can also be subject-matter committees for discovery, briefing, and other aspects of the litigation that are supervised by the PEC, and ultimately leadership.

According to a study conducted by Dana Alvare of the Sheller Center for Social Justice at Temple University entitled Vying for Lead in the Boys’ Club: Understanding the Gender Gap in Multidistrict Litigation Leadership Appointments, between 2011 and 2015, women made up only 16% of all plaintiffs’ MDL leadership appointments:

While these numbers have grown over time, the growth rate has been very slow, particularly when we’re talking about lead counsel positions. Importantly, from 2011 to 2015, women held only 15% of leadership (called Tier 1 in the article) roles and 19% of leadership committee (called Tier 2) roles:

Nearly 50% of the cases studies did not have any women in a Tier 1 leadership role, and 63% of the cases did not have any women in leadership positions at either tier level. Thus, as the study concluded, “there is a quantifiable and substantial gender gap in MDL leadership appointments.”

When the study was updated a few years later, the numbers had only increased slightly. From 2016 to 2017, women held only 24% of MDL leadership positions. And, as with the previous study, most of that growth was in Tier 2 leadership positions:

A more recent study published in the Texas Law Review—which looked at 68 product liability MDLs pending in June 2019, had slightly more encouraging numbers. While the authors noted that MDL judges had largely ignored academic recommendations to appoint leadership through a more open and competitive application process, they found that there had been a slight increase in leadership appointments going female attorneys: 18.9% of plaintiff-side lead counsel positions went to women.

The authors also found “substantial movement” in the attorneys and firms whom MDL courts appointed most frequently to leadership posts. This stood in contrast to an older study that looked at repeat players in MDLs found that 30% of available MDL leadership roles were occupied by 50 attorneys. Only 11 of those 50 attorneys (22%) were women.

For these reasons, there are a growing number of judges who are demanding more diverse leadership in MDLs, as well as class actions generally. U.S. District Judge Robin L. Rosenberg in Florida hand-selected a team to lead an MDL over the heartburn medication Zantac. She created a leadership structure that included a “leadership development committee” that included two women. (Judge Rosenberg’s practice of appointing such a committee has been followed by U.S. District Judge Joy Flowers Conti in the Western District of Pennsylvania.) U.S. District Judge Cynthia M. Rufe in Pennsylvania appointed two women to lead a substantial price-fixing case against the generic drug industry. And in 2022 U.S. District Judge Brian Martinotti in New Jersey appointed an MDL leadership slate that was nearly three-quarters women.

The Reasons for the Lack of Diversity

While sexism undoubtedly explains why more women aren’t appointed to leadership positions in MDLs (more on that in a bit), there are also structural reasons why such appointments don’t happen. First, leadership positions tend to be given to senior lawyers and, as we’ve discussed many times in this newsletter, there aren’t many senior women lawyers at the top of law firms. While the studies cited for this proposition tend to come from BigLaw, I can tell you from personal experience that it’s even worse on the plaintiffs’ side of things. While there are many more women partners at plaintiffs’ firms than there used to be, the vast majority of the largest plaintiffs’ firms are still run by men.

Second, running an MDL takes large amounts of human and financial resources, or access to those things. Unless you’re independently wealthy, you can’t just open a solo law firm and expect to be appointed into sole leadership of an MDL. Even though there are many talented women on the plaintiffs’ side who are capable of running the country’s largest cases, they simply don’t have the financial wherewithal to run cases by themselves. The financial barriers to entry ensconce the same male partners in leadership year-after-year.

Finally, women on the plaintiffs’ side often face two levels of sexism before they can be appointed to leadership in an MDL. It starts at plaintiffs’ firms. Unlike most defense firms, plaintiffs’ firms are often managed by a single male partner or a few male partners. In order to get your name submitted—to the court or to the cabal of lawyers who are de-facto deciding leadership—you have to have support from that partner or partners. Even in the rare case where judges reject the initial slates of candidates and request more diversity—the “go back to the drawing board”-type situation—an MDL judge is relying on the moving law firms to identify diverse candidates, and if you don’t have internal support, or if you have a male partner who insists that his name is the only one submitted for leadership applications, your name will never be on a leadership roster, even if you end up doing all the work.

Then, even if you’re lucky enough to have internal support to submit your name, it’s hard to get past the cabal of lawyers who are the usual MDL players. The phenomenon of repeat players in the MDL—perhaps more than anything else—contributes to women being shut out of leadership positions.

Although there are many variations, at core there are two ways that plaintiffs’ lawyers get appointed to lead an MDL. The first is where a group of lawyers submits a slate of candidates for leadership positions. In larger cases, multiple groups will submit competing slates. The judge presiding over the MDL will then select the slate he or she believes is best suited to run the case. The second way a lawyer can get appointed is when the judge asks individual attorneys to apply and then creates the plaintiffs’ leadership team from those candidates.

In the “slate” scenario, if you don’t work for one of the powerful frequent-flyer law firms, it can be incredibly challenging to get on the slate of candidates submitted to the court for leadership. And quite frankly, even if you work for one of those law firms and have pre-existing relationships with frequent-flyers, as a woman you can be excluded from the dinners, golf trips, or other pre-meetings where leadership is actually decided. Often when a woman is being considered for a leadership position, the repeat players communicate with the woman’s male partners about the appointment, rather than communicating directly with her.

All of the above reasons may be a reason that at least one older study found that the picture is a little brighter on the defense side, with lawyers who represent defendants in MDLs being slightly more diverse. Between 2010 and 2014, the study found that men were appointed as defense counsel 2.88 more times than women while, during the same time period, men were appointed as plaintiffs’ attorneys 3.02 more times than women. That study is consistent with my more recent experience: when working on large MDLs I’ve often had to look at women on the other side of the v. to find role models.

Closing Thoughts

As with many things in this newsletter, the data show us that, when it comes to MDL leadership, we must do better by women. While there are structural barriers to advancement that are not directly related to gender, we can’t allow those factors to more firmly ensconce only a few lawyers—or law firms—at the top.

Doing so requires some degree of discomfort. Years ago I remember when Jayne Conroy of Simmons Hanly Conroy told U.S. District Judge James Selna, who was presiding over the Toyota unintended acceleration MDL, that he needed to appoint more women into leadership to ensure that the leadership slate reflected the plaintiffs the lawyers sought to represent. At the time I hadn’t thought much about how to improve the representation of women at the top of MDLs, so when I heard about Jayne’s plea, I cringed. I was worried that all of the women appointed as a result of her request would be tainted as tokens.

Now I realize that, even if the practice of insisting on diverse slates seems like tokenism at first, it’s absolutely necessary to get women and other underrepresented groups into MDL leadership. Nothing will change until women get those appointments in the first place. I mean, while people may have thought Jayne Conroy was asking for tokenism in Toyota, no one did at the conclusion of the case. And certainly no one’s thought about Jayne that way since then!

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