Kurtz v. Kimberly-Clark Corporation et al

Filing 226

MEMORANDUM & ORDER. The cases captioned herein may be particularly appropriate for aggregate agency resolution. The parties are encouraged to explore the opportunity for aggregate adjudication of their claims before the FTC pursuant to the new federal recommendation by the Administrative Conference of the United States. Ordered by Judge Jack B. Weinstein on 6/28/2016. (Attachments: #1 Aggregation of Similar Claims in Agency Adjudication, 81 Fed. Reg. 119, 40259-61 (June 21, 2016), #2 Michael SantAmbrogio & Adam Zimmerman, Inside the Agency Class Action (June 15, 2016)) (Barrett, C)

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40259

Notices

Federal Register
Vol. 81, No. 119
Tuesday, June 21, 2016

This section of the FEDERAL REGISTER
contains documents other than rules or
proposed rules that are applicable to the
public.. Notices of hearings and investigations,
committee meetings, agency decisions and
rulings, delegations of authority, filing of
petitions and applications and agency
statements of organization and functions are
examples of documents appearing in this
section.

ADMINISTRATIVE CONFERENCE OF
THE UNITED STATES

Adoption of Recommendations
AGENCY: Administrative Conference of
the United States.
ACTION: Notice.
SUMMARY: The Administrative
Conference of the United States adopted
two recommendations at its Sixty-fifth
Plenary Session. The appended
recommendations address: Consumer
Complaint Databases and Aggregation of
Similar Claims in Agency Adjudication.
FOR FURTHER INFORMATION CONTACT: For
Recommendation 2016-1, Gisselle
Bourns; for Recommendation 2016-2,
Amber Williams. For both of these
actions the address and telephone
number are: Administrative Conference
of the United States, Suite 706 South,
1120 20th Street NW .. Washington, DC
20036; Telephone [phone].
SUPPLEMENTARY INFORMATION: The
Administrative Conference Act, 5 U.S.C.
591-596, established the Administrative
Conference of the United States. The
Conference studies the efficiency,
adequacy, and fairness of the
administrative procedures used by
Federal agencies and makes
recommendations to agencies, the
President, Congress, and the Judicial
Conference of the United States for
procedural improvements (5 U.S.C.
594(1)). For further information about
the Conference and its activities, see
WWlV.acus.gov. At its Sixty-fifth Plenary
Session, held June 10, 2016, the
Assembly of the Conference adopted
two recommendations.
Recommendation 2016-1, Consumer
Complaint Databases. This
recommendation encourages agencies
that make consumer complaints
publicly available through online
databases or downloadable data sets to
adopt and publish written policies
governing the dissemination of such
information to the public. These

policies should inform the public of the
source and limitations of the
information and permit entities publicly
identified to respond or request
corrections or retractions.
Recommendation 2016-2,
Aggregation of Similar Claims in Agency
Adjudication. This recommendation
provides guidance to agencies on the
use of aggregation techniques to resolve
similar claims in adjudications. It sets
forth procedures for determining
whether aggregation is appropriate. It
also considers what kinds of aggregation
techniques should be used in certain
cases and offers guidance on how to
structure the aggregation proceedings to
promote both efficiency and fairness.
The Appendix below sets forth the
full texts of these two recommendations.
The Conference will transmit them to
affected agencies, Congress, and the
Judicial Conference of the United States.
The recommendations are not binding,
so the entities to which they are
addressed will make decisions on their
implementation.
The Conference based these
recommendations on research reports
that are posted at: https://
WWlV.acus.gov/65th. A video of the
Plenary Session is available at:
new.livestream.com!ACUS/65thPlenary,
and a transcript of the Plenary Session
will be posted when it is available.
Dated: June 16, 2016.
Shawne C. McGibbon,
General Counsel.

APPENDIX-RECOMMENDATIONS OF
TIIE ADMINISTRATIVE CONFERENCE
OF TIIE UNITED STATES
Administrative Conference Recommendation
2016-1

Consumer Complaint Databases
Adopted June 10, 2016
Some federal agencies maintain records of
consumer complaints and feedback on
products and services offered by private
entities. Taking advantage of recent
technological developments, several agencies
have recently begun to make such
information available to the public through
online searchable databases and
downloadable data sets that contain
complaint narratives or provide aggregate
data about complaints. Examples of such
online searchable databases include: the
Consumer Product Safety Commission's
database of consumer product incident
reports ("Saferproducts.gov"); the National
Highway Traffic Safety Administration's
database of recalls, investigations, and

complaints (" Safercar.gov"); and the
Consumer Financial Protection Bureau's
database of financial products and services
complaints ("Consumer Complaint
Database"), 1
As documented by the Executive Office of
the President's National Science and
Technology Council, agencies are constantly
improving databases that publish consumer
complaints and information, and are
gradually developing best practices for such
disclosures. 2 Two policy considerations are
significant in this process. Agencies must
have the flexibility to provide information to
the public to facilitate informed
decisionmaking. At the same time, agencies
should inform the public of the limitations of
the information they disseminate.:i The
following recommendations aim to promote
the widespread availability of such
information and to identify best practices to
ensure the integrity of complaints databases
and data sets.

Recommendation
To the extent permitted by law, agencies
that make consumer complaints publicly
available (whether in narrative or aggregated
form) through online databases or
downloadable data sets should adopt and
publish online written policies governing the
public dissemination of consumer
complaints through databases or
downloadable data sets. These policies
should:
1. Inform the public of the source(s) and
limitations of the information, including
whether the information is verified or
1 Other examples located by the Administrative
Conference include: the Department of
Transportation's monthly data sets on the number
and types of complaints against airlines {"Air
Travel Consumer Report") (only aggregated data
about complaints is made public, with the
exception of animal incident reports, for which a
narrative description is provided): the Federal
Trade Commission's consumer complaints database
["Consumer Sentinel") (only aggregated data about
complaints is made public); and the Federal
Communications Commission's database of
unwanted calls and consumer complaints
("Consumer Complaints at the FCC") (complaint
narratives are not provided). Some databases and
data sets include reports from both consumers and
manufacturers, such as the Food and Drug
Administration's database of reports of suspected
device-associated deaths, serious injuries, and
malfunctions ("MAUDE"), as well as its
downloadable data sets of adverse events and
medication errors (''FAERS''),
z See Executive Office of the President, National
Science and Technology Council, Smart Disclosure
and Consumer Decision Making: Report of the Task
Force on Smart Disclosure 15 (May 30, 2013).
3 See generally id; see also Nathan Cortez, Agency
Publicity in the Internet Era 44-45 (Sept. 25, 2015)
(report to the Administrative Conference of the
United States), https:llwww.acus.gov/reportl
agency-publicity-internet-era-report (discussing
disclaimers provided by Food and Drug
Administration on the accuracy and reliability of
data in MAUDE and FAERS databases).

40260

Federal Register/Vol. 81, No. 119/Tuesday, June 21, 2016/Notices

authenticated by the agency, and any
procedures used to do so;
2. permit entities publicly identified in
consumer complaints databases or
downloadable data se.ts to respond, as
practicable, or request corrections or
retractions, as appropriate; and
3. give appropriate consideration to
privacy interests.
Administrative Conference Recommendation
2016-2

Aggregation of Similar Claims in Agency
Adjudication
Adopted June 10, 2016
Federal agencies in the United States
adjudicate hundreds of thousands of cases
each year-more than the federal courts.
Unlike federal and state courts, federal
agencies have generally avoided aggregation
tools that could resolve large groups of
claims more efficiently. Consequently, in a
wide variety of cases, agencies risk wasting
resources in repetitive adjudication, reaching
inconsistent outcomes for the same kinds of
claims, and denying individuals access to the
affordable representation that aggregate
procedures promise. Now more than ever,
adjudication programs, especially high
volume adjudications, could benefit from
innovative solutions, like aggregation.1
The Administrative Procedure Act (APA) 2
does not provide specifically for aggregation
in the context of adjudication, though it also
does not foreclose the use of aggregation
procedures. Federal agencies often enjoy
broad discretion, pursuant to their organic
statutes, to craft procedures they deem
"necessary and appropriate" to adjudicate
the cases and claims that come before them. 3
This broad discretion includes the ability to
aggregate common cases, both formally and
informally. Fonnal aggregation involves
permitting one party to represent many
others in a single proceeding. 4 In informal
aggregation, different claimants with very
similar claims pursue a separate case with
separate counsel, but the agency assigns them
to the same adjudicator or to the same
1 Other related techniques that can help resolve
recurring legal issues in agencies include the use of
precedential decisions, declaratory orders as
provided in 5 U.S.C. 554{e), and rulemaking. With
respect to declaratory orders, see Recommendation
2015-3, Declaratory Orders, 80 FR 78,163 (Dec. 16,
2015), available at https://www.acus.gov/
recommendation/declamtory·orders. The Supreme
Court has recognized agency authority to use
rulemaking to resolve issues that otherwise might
recur and require hearings in adjudications. See
Heckler v. Campbell, 461 U.S. 458 (1983).
2 See Administrative Procedure Act, Public Law
79-404, 60 Stat. 237 (1946) (codified as amended
at 5 U.S.C. 551-559, 701-706 and scattered sections
in Title 5).
3 Broad discretion exists both in "formal
adjudication," where the agency's statute requires
a ''hearing on the record," triggering the AP A's
trial·type procedures, and in "informal
adjudication," where the procedures set forth in
APA§§ 554, 556 & 557 are not required, thus
allowing less formal procedures (although some
"informal adjudications" are nevertheless quite
formal).
~This recommendation does not address formal
aggregation of respondents or defendants in
proceedings before agencies.

docket, in an effort to expedite the cases,
conserve resources, and ensure consistent
outcomes.5
Yet, even as some agencies face large
backlogs, few have employed such
innovative tools. There are several possible
explanations for this phenomenon. The sheer
number of claims in aggregate agency
adjudications may raise concerns of
feasibility, legitimacy, and accuracy because
aggregation could (1) create diseconomies of
scale by inviting even more claims that
further stretch the agency's capacity to
adjudicate; (2) negatively affect the perceived
legitimacy of the process; and (3) increase the
consequence of error.
Notwithstanding these risks, several
agencies have identified contexts in which
the benefits of aggregation, including
producing a pool of information about
recurring problems, achieving greater
equality in outcomes, and securing the kind
of expert assistance high volume
adjudication attracts, outweigh the costs.a
Agencies have also responded to the
challenges of aggregation by (1) carefully
piloting aggregation procedures to improve
output while avoiding creation of new
inefficiencies; (2) reducing potential
allegations of bias or illegitimacy by relying
on panels, rather than single adjudicators,
and providing additional opportunities for
parties to voluntarily participate in the
process; and (3) allowing cases raising
scientific or novel factual questions to
"mature" 7-that is, putting off aggregation
until the agency has the benefit of several
opinions and conclusions from different
adjudicators about how a case may be
handled expeditiously.
The Administrative Conference recognizes
aggregation as a useful tool to be employed
in appropriate circumstances. This
recommendation provides guidance and best
practices to agencies as they consider
whether or how to use or improve their use
of aggregation. s

Recommendation
1. Aggregate adjudication where used
should be governed by formal or informal
American Law Institute's Principles of the
defines proceedings that
coordinate separate lawsuits in this way as
"administrative aggregations,'' which are distinct
from joinder actions (in which multiple parties are
joined in the same proceeding) or representative
actions {in which a party represents a class in the
same proceeding). See American Law Institute,
Principles of the Law of Aggregate Litigation § 1.02
(2010) (describing different types of aggregate
proceedings).
6 See Michael Sant'Ambrogio & Adam
Zimmerman. Aggregate Agency Adjudication 27-65
(June 9, 2016), available at https:l/www.acus.gov/
~The

Law of Aggregation

report/aggregate-agency·adjudication-final-report

(describing three examples of aggregation in
adjudication).
7 Cf. Francis E. McGovern, An Analysis of Mass
Torts for fudges, 73 Tex. L. Rev.1821 (1995)
(defining "maturity" in which both sides' litigation
strategies are clear, expected outcomes reach an
"equilibrium," and global resolutions or settlements
may be sought).
8 This recommendation covers both adjudications
conducted by administrative law judges and
adjudications conducted by non-administrative law
judges.

aggregation rules of procedure consistent
with the APA and due process.

Using Alternative Decisionmaking
Techniques
2. Agencies should consider using a variety
of techniques to resolve claims with common
issues of fact or law, especially in high
volume adjudication programs. In addition to
the aggregate adjudication procedures
discussed in paragraphs 3-10, these
techniques might include the designation of
individual decisions as "precedential," the
use of rulemaking to resolve issues that are
appropriate for generalized resolution and
would otherwise recur in multiple
adjudications, and the use of declaratory
orders in individual cases.
Determining Whether To Use Aggregation
Procedures
3. Agencies should take steps to identify
whether their cases have common claims and
issues that might justify adopting rules
governing aggregation. Such steps could
include:
a. Developing the information
infrastructure, such as public centralized
docketing, needed for agencies and parties to
identify and track cases with common issues
of fact or law;
b. Encouraging adjudicators and parties to
identify specific cases or types of cases that
are likely to involve common issues of fact
or law and therefore prove to be attractive
candidates for aggregation: and
c. Piloting programs to test the reliability
of an approach to aggregation before
implementing the program broadly.
4. Agencies should develop procedures
and protocols to assign similar cases to the
same adjudicator or panel of adjudicators
using a number of factors, including:
a. Whether coordination would avoid
duplication in discovery;
b. Whether it would prevent inconsistent
evidentiary or other pre-hearing rulings:
c. Whether it would conserve the resources
of the parties, their representatives, and the
agencies: and
d. Where appropriate, whether the agencies
can accomplish similar goals by using other
tools as set forth in paragraph 2.
5. Agencies should develop procedures
and protocols for adjudicators to determine
whether to formally aggregate similar claims
in a single proceeding with consideration of
the principles and procedures in Rule 23 of
the Federal Rules of Civil Procedure,
including:
a. Whether the number of cases or claims
are sufficiently numerous and similar to
justify aggregation:
b. Whether an aggregate proceeding would
be manageable and materially advance the
resolution of the cases;
c. Whether the benefits of collective
control outweigh the benefits of individual
control, including whether adequate counsel
is available to represent the parties in an
aggregate proceeding;
d. Whether (or the extent to which) any
existing individual adjudication has (or
related adjudications have) progressed; and
e. Whether the novelty or complexity of the
issues being adjudicated would benefit from
the input of different adjudicators.

Federal Register/Vol. 81, No. 119/Tuesday, June 21, 2016/Notices
Structuring the Aggregate Proceeding
6. Agencies that use aggregation should
ensure that the parties' and other
stakeholders' interests are adequately
protected and that the process is understood
to be transparent and legitimate by
considering the use of mechanisms such as:
a. Permitting interested stakeholders to file
amicus briefs or their equivalent;
b. Conducting "fairness hearings," in
which all interested stakeholders may
express their concerns with the proposed
relief to adjudicators in person or in writing;
c. Ensuring that separate interests are
adequately represented in order to avoid

DEPARTMENT OF AGRICULTURE

Forest Service
Notice of Proposed New Special
Recreation Permit Fee

Wallowa-Whitman National
Forest, USDA Forest Service.
ACTION: Notice of proposed new special
recreation permit fee.

AGENCY:

The Wallowa-Whitman
National Forest is proposing to
implement a Special Recreation Permit
conflicts of interest;
Fee on the Wild and Scenic Snake River
d. Permitting parties to opt out in
which flows between Oregon and Idaho.
appropriate circumstances;
Implementing a Special Recreation
e. Permitting parties to challenge the
Permit Fee would allow the Forest
decision to aggregate in the appeals process,
Service to manage the specialized
including an interlocutory appeal to the
recreation use associated with float and
agency; and
power boating on the Wild and Scenic
f. Allowing oral arguments for amici or
Snake River, and result in improved
amicus briefs in agency appeals.
services and experiences. Fees are
7. Agencies that use aggregation should
assessed based on the level of amenities
develop written and publicly available
and services provided, cost of operation
policies explaining how they initiate,
and maintenance of river-related
conduct, and terminate aggregation
facilities, market assessment, and public
proceedings. The policies should also set
forth the factors used to determine whether
comments received.
aggregation is appropriate.
Boaters using the Wild and Scenic
8. Where feasible, agencies should consider Snake River would be subject to a
assigning a specialized corps of experienced
Special Recreation Permit Fee (boateradjudicators who would be trained to handle use permit fee) of $5.00 to $10.00 per
aggregate proceedings, consistent with APA
person that would be collected from all
requirements where administrative law
private and commercial boaters and
judges are assigned. Agencies should also
their occupants. The implementation of
consider using a panel of adjudicators from
the fee on the Wild and Scenic Snake
the specialized corps to address concerns
with having a single adjudicator decide cases River is comparable to other federal dayuse fees within the current Four Rivers
that could have a significant impact.
reservation system for the Selway,
Agencies that have few adjudicators may
Middle Fork Salmon, Main Salmon and
need to "borrow" adjudicators from other
agencies for this purpose.
other sections of the Snake Rivers. The
area subject to the fee is the Snake River
Using Aggregation To Enhance Control of
beginning at Hells Canyon Dam to
Policymaking
Cache Creek Ranch (approximately 70
9. Agencies should make all decisions in
miles).
aggregate proceedings publicly available. In
The exceptions to this boater-use
order to obtain the maximum benefit from
permit fee are:
aggregate proceedings, agencies should also
• Travel by private, noncommercial
consider designating final agency decisions
boat to any land in which the person
as precedential if doing so will:
has property rights.
a. Help other adjudicators handle
subsequent cases involving similar issues
• Any person who has right of access
more expeditiously;
for hunting or fishing privileges under
b. Provide guidance to future parties;
specific provisions of treaty or law.
c. Avoid inconsistent outcomes; or
• Individual outfitter/guides and their
d. Increase transparency and openness.
associated employees, while acting in
10. Agencies should ensure the outcomes
an official capacity under the terms of
of aggregate adjudication are communicated
their permit.
to policymakers or personnel involved in
At this time there is no boater-use
rulemaking so that they can determine
permit fee on the Wild and Scenic
whether a notice-and-comment rulemaking
Snake River for float or power boats.
proceeding codifying the outcome might be
Boater-use for private float and power
worthwhile. If agencies are uncertain they
want to proceed with a rule, they might issue boats is currently managed though a
a notice of inquiry to invite interested parties national reservation system, which
to comment on whether the agencies should
limits the amount of boats during the
codify the adjudicatory decision {in whole or primary use season to meet management
in part) in a new regulation.
plan direction. A $6.00 transaction cost
!FR Doc. 2016-14636 Filed 6-20-16; 8:45 am]
is associated with this reservation
BILLING CODE 6110-01-P
permit and is completely retained by the
SUMMARY:

40261

reservation contractor. In the future the
reservation permit fee will be continued
in conjunction with the application of
this proposed boater-use permit fee for
private boaters.
At this time the listed boater-use
permit fee is only a proposal and further
analysis and public comment will occur
before a decision is made. Funds from
the proposed fee would be used for
administrative and operational needs in
the recreation area to enhance user
experience and safety, sustain natural
and cultural resources, and facility
maintenance and improvements.
DATES: New fees would begin after, and
contingent upon a review and
recommendation by the John Day-Snake
River Resource Advisory Council and
approval by the Regional Forester for
the Pacific Northwest Region. All
comments should be received no later
than 60 days from publication of this
notice in the Federal Register. The
publication date of this Notice in the
Federal Register is the exclusive means
for calculating the comment period for
this proposal. Those wishing to
comment should not rely upon dates or
timeframe information provided by any
other source.
Public Open House: A series of public
open houses are scheduled to answer
questions brought forth by the public.
The open house dates are:
1. July 5, 2016, 6 p.m. to 8 p.m., Boise,
ID.

2. July 6, 2016, 6 p.m. to 8 p.m.,
Riggins, ID.
3. July 7, 2016, 6 p.m. to 8 p.m.,
Clarkston, WA.
4. July 8, 2016, 6 p.m. to 8 p.m.,
Joseph, OR.
ADDRESSES: Send written comments to:
Jacob Lubera, Deputy District Ranger,
Wallowa-Whitman National Forest, 201
East Second Street, P.O. Box 905,
Joseph, Oregon 97846. Comments may
also be faxed to 541-426-4978.
Comments may be hand-delivered to the
above address Monday through Friday,
from 8 a.m. till 4:30 p.m., excluding
legal holidays.
Electronic Comments: Electronic
comments must be submitted in a
format such as an email message, plain
text (.txt), rich text format (.rtf), or Word
(.docx) to [e-mail]. Emails
submitted to email addresses other than
the one listed above, in other formats
than those listed, or containing viruses
will be rejected. Comments can also be
submitted at http://www.fs.usda.gov/
detail/wallowa-whitman/specialplaces/
?cid=fseprd481691. It is the
responsibility of persons providing
comments to submit them by the close