John G. Schmidt Jr. and Richard T. Tucker Co-Author Article for Law360

A Valuable Tool For Consolidating NY State Court Actions

In the areas of complex litigation, including class actions, consumer fraud, cyberattacks and mass torts, a business may find itself in the undesirable position of being simultaneously sued in many different courts by many different plaintiffs. In these circumstances, a defendant will rightfully have significant anxiety about the prospect of simultaneously defending multiple related actions across several jurisdictions. Such a scenario raises the prospects of inconsistent decisions, unknown judges and duplicative litigation. If the lawsuits involve common claims and underlying facts, an immediate and time-sensitive question arises: Can and should they be consolidated into one proceeding?

The most common reaction would be to involve the U.S. federal court’s Judicial Panel on Multidistrict Litigation (JPML), which can transfer federal (but not state) court actions pending in multiple federal courts involving common questions of fact to one federal district for coordinated or consolidated pretrial proceedings.[1] If, however, there are several related matters in which a party has been sued in New York state court, and those actions cannot jurisdictionally be removed to federal court, coordination under the federal panel is unavailable.

In those circumstances, consolidation of the related state court matters is possible through New York state’s Litigation Coordinating Panel (LCP). The LCP is a less familiar body than its federal counterpart,[2] but provides similar procedures for coordination of related cases in different New York state courts.

New York State Litigation Coordinating Panel

The LCP was created under 22 NYCRR § 202.69 (Rule 202.69). In general, the LCP has the power to direct that related lawsuits filed in different New York judicial districts with common questions of fact or law be coordinated for pretrial proceedings before a single justice. One justice of the Supreme Court from each of the four judicial departments sits on the LCP.[3] Rule 202.69 and the LCP’s rules of procedure govern this process.[4]

Coordination may be sought by a party, the trial judge or administrative judge in whose district a related action is pending, or sua sponte by the LCP itself.[5] Rule 202.69 provides the standards considered by the LCP when determining such an application:

• The complexity of the actions;
• Whether common questions of fact or law exist, and the importance of such questions to the determination of the issues;
• The risk that coordination may unreasonably delay progress, increase expense, or complicate processing of any action or otherwise prejudice a party;
• The risk of duplicative or inconsistent rulings, orders or judgments;
• The convenience of the parties, witnesses and counsel;
• Whether coordinated discovery would be advantageous;
• Efficient utilization of judicial resources;
• The manageability of a coordinated litigation;
• Whether issues of insurance, limits on assets and potential bankruptcy can be best addressed in coordinated proceedings; and
• The pendency of related matters in federal or other state courts.[6]

A party seeking coordination must make an application directly to the LCP by notice of motion, or if exigent circumstances exist, by order to show cause.[7] The motion is filed under each of the captions of the actions proposed to be coordinated, and is returnable before the LCP, rather than any of the trial courts where the related actions are venued.[8] The motion is made on notice to all parties in all of the related matters, and a copy of the moving papers must also be submitted to the assigned justices of each related matter.[9] The motion should identify all of the related actions and counsel therein.[10] Most importantly, the motion must address the standards for coordination set forth in Rule 202.69 (b)(3), described above.[11]

Upon filing of a coordination motion, the LCP will issue a briefing schedule and may schedule oral argument.[12] Pending a decision on coordination, the LCP may issue a stay of any or all of the proceedings.[13] Absent such a stay, a motion for coordination will not affect the underlying proceedings.[14] To avoid potentially inconsistent discovery or other pretrial proceedings, the moving party should consider requesting a stay of the related actions as part of its motion.

Within 30 days after the motion is fully briefed and/or argued, the LCP will issue a written decision.[15] In the event that the application is granted, an order of coordination will also be issued, which will identify all coordinated matters and the county where the coordinated proceedings will take place.[16] Since this process is considered administrative, no appeal lies from the LCP’s ruling on the application for coordination.[17]

The Coordinating Justice

The justice assigned to a coordinated proceeding is selected by the administrative judge responsible for the court where the coordinated proceedings will take place.[18] The coordinating justice has comprehensive power over pretrial matters and is specifically authorized to take a multitude of steps to prepare a coordinated action for trial:

• Assign a master caption;
• Create a central case file and docket and establish a service list;
• Direct the preparation of coordinated pleadings;
• Issue case management orders;
• Appoint and define the roles of steering committees and liaison counsels;
• Require uniform requests for disclosure and establish a uniform method for the conduct of physical and mental examinations;
• Establish a document depository;
• Issue discovery protective orders;
• Require the parties to participate in settlement discussions and ADR;
• Remand any portion of a case not properly subject to coordination; and
• Rule upon dispositive motions.[19]

Additionally, where there are other related actions pending in federal courts or the courts of other states, the New York coordinating justice is required to consult with the judges in those other cases to facilitate the consistent and efficient resolution of the actions.[20] That can include coordinating discovery in the New York coordinated cases to proceed jointly or in coordination with discovery in the federal or other state court actions.[21] This provision of Rule 202.69 is important because it allows discovery to be coordinated with other related federal courts matters, which otherwise would not be possible.

The LCP also provides for the coordination of other related actions filed after a coordination order is issued.[22] If such relief is sought, it may also contemplate related actions that were already pending, but unknown at the time of filing.[23] To coordinate these other actions, a party need only serve notice of coordination and a copy of the LCP’s coordination decision and order on counsel in the new action, the justice assigned to the new action and the coordinating justice.[24] Unless one of the new parties raises an objection within 21 days, the action is deemed coordinated.[25] If an objection is raised, an application seeking coordination can be made using the motion procedures outlined above.[26]

Trial of the Related Actions

The coordinating justice, sua sponte or on motion, may terminate coordination of the related actions if pretrial proceedings have been completed or where the purpose of Rule 202.69 to provide efficient resolution of related actions is better advanced by termination of the coordination.[27] Upon termination, the related actions are remanded to their counties of origin.[28]

The coordinating justice is, however, authorized to try any part of the coordinated actions on consent of the parties.[29] This is an important distinction from JPML practice, because it allows for a single coordinated trial before a single justice.

Conclusion

The LCP can be a valuable procedural tool to coordinate related complex, mass or class action litigation. The LCP is particularly important for the coordinated defense of related actions that are not removable to federal court and therefore cannot be coordinated under the JPML.

—By John G. Schmidt Jr. and Richard T. Tucker, Phillips Lytle LLP

John Schmidt Jr. is a partner in Phillips Lytle’s Buffalo, New York, office. Richard Tucker is an associate in
the firm’s Rochester, New York, office.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice

[1] Since its inception in 1968, the federal JPML has considered motions in more than 2,550 dockets involving over 500,000 cases. See http://www.jpml.uscourts.gov/panel-info/overview-panel.

[2] Since its inception in in 2003, the LCP has publicly reported only 24 decisions. See https://www.nycourts.gov/courts/1jd/supctmanh/LCP/Decisionslist.shtml.

[3] 22 NYCRR § 202.69(a).

[4] https://www.nycourts.gov/courts/1jd/supctmanh/LCP/Procedures.shtml (“PLCP Rule”).

[5] 22 NYCRR § 202.69(b)(2).

[6] 22 NYCRR § 202.69(b)(3).

[7] PLCP Rule (b)(4).

[8] PLCP Rule (b)(4).

[9] PLCP Rule (b)(5).

[10] PLCP Rule (b)(5).

[11] PLCP Rule (b)(5).

[12] PLCP Rule (c).

[13] PLCP Rule (d).

[14] PLCP Rule (d).

[15] PLCP Rule (e)(1).

[16] PLCP Rule (e)(1).

[17] PLCP Rule (e)(3).

[18] 22 NYCRR § 202.69(c)(1).

[19] 22 NYCRR § 202.69(c)(2).

[20] 22 NYCRR § 202.69(c)(3).

[21] 22 NYCRR § 202.69(c)(3).

[22] PLCP Rule (f).

[23] PLCP Rule (f)(1).

[24] PLCP Rule (f)(1).

[25] PLCP Rule (f)(1).

[26] PLCP Rule (f)(1).

[27] 22 NYCRR § 202.69(d); PLCP Rule (g).

[28] 22 NYCRR § 202.69(d).

[29] 22 NYCRR § 202.69(d).

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