In re: General Motors LLC Ignition Switch Litigation

Filing 125

OPINION AND ORDER: In complex, multidistrict litigation of this sort, courts must grapple with - indeed, juggle a host of challenges and considerations. Among the most important of those challenges and considerations is striking the right balance between, on the one hand, protecting and preserving the rights and interests of individual litigants while, on the other hand, ensuring that such solicitude does not undermine the central purpose of MDL consolidation - namely, promoting "just and efficient" resolution of the parties' disputes. 28 U.S.C. 1407(a). In its effort to streamline the litigation, the Court's initial order addressing the effect of the Consolidated Complaints in this MDL - Order No. 29 - failed to grant appropriate weight to the former concern. For the reasons stated above, however, the Court concludes that Order No. 50 - a copy of which is attached for ease of reference does strike the right balance. As noted, Order No. 50 contemplates entry of additional orders touching on these issues. Through those orders and others, the Court will undoubtedly refine the balance between the individual and collective even further. For now, however, the Court finds that Order No. 50 appropriately protects the interests of all individual parties while ensuring that the Court is able to "expeditiously and thoroughly resolve" the common legal and factual issues that motivated the JPML to transfer these cases here. In re Asbestos Cases of Hatch, James & Dodge, G. Patterson Keahey, No. 06-CV-741 (TS), 2007 WL 582983, at *2 (D. Utah Feb. 20, 2007). (Signed by Judge Jesse M. Furman on 6/10/2015) (kl)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------------------------------x
IN RE:
GENERAL MOTORS LLC IGNITION SWITCH LITIGATION
This Document Relates To All Actions
-----------------------------------------------------------------------------x

06/10/2015
14-MD-2543 (JMF)
14-MC-2543 (JMF)
OPINION AND ORDER

JESSE M. FURMAN, United States District Judge:
This opinion addresses a thorny — and somewhat unsettled — issue in multi-district
litigation (“MDL”): the effect of a consolidated complaint, brought on behalf of a putative class,
on the underlying complaints of those not named in in the consolidated complaint. It arises in
the context of an MDL pending before this Court, relating to defects in the ignition switches and
other features of certain General Motors vehicles and associated recalls. In complex MDLs like
this one, involving hundreds of individual complaints and thousands of plaintiffs, consolidated
complaints can be critical case management tools, helping to organize and clarify what claims
and defenses are being pursued, thereby enabling the parties to conduct discovery more
efficiently and providing an effective vehicle for motion practice with respect to common issues
of law and fact. At the same time, however, a court presiding over an MDL must take steps to
ensure that efficiency does not trump fundamental fairness and that the desire for certainty does
not deprive any individual party of substantive rights. Having recently entered an Order
clarifying the effect of consolidated complaints (the “Consolidated Complaints”) filed in this
MDL on individual complaints (Order No. 50 (14-MD-2543 Docket No. 875), attached as
Exhibit 1), the Court provides this Opinion to describe the background leading up to, and

1

rationale behind, that Order — in the hopes that doing so will provide the parties and other courts
presiding over complex MDLs with helpful guidance. 1
BACKGROUND
On June 12, 2014, the Judicial Panel on Multidistrict Litigation (the “JPML”) issued an
order transferring fifteen actions to this Court for “coordinated or consolidated pretrial
proceedings” pursuant to Title 28, United States Code, Section 1407. (14-MD-2543 Docket No.
1). All actions pending before the JPML at the time of its initial Order asserted economic loss
claims against General Motors, LLC (“New GM”) based on an ignition switch defect in certain
General Motors vehicles, one that “causes the vehicle’s ignition switch to move unintentionally
from the ‘run’ position to the ‘accessory’ or ‘off’ position, resulting in a loss of power, vehicle
speed control, and braking, as well as a failure of the vehicle’s airbags to deploy.” (Id. at 1-2).
Since then, the JPML has expanded the scope of actions transferred to this MDL to encompass
personal injury and wrongful death claims (see Transfer Order (14-MD-2543 Docket No. 505) 1
n.1), as well as economic loss claims based on both ignition switch defects and other alleged
defects, on the theory that “there will be discovery that is common to the MDL and to” such
actions (Transfer Order (14-MD-2543 Docket No. 519) 1). To date, the JPML has issued
forty-seven transfer orders; the total number of cases in the MDL, including cases directly filed
in this Court, is now up to 210, brought by several thousand Plaintiffs. New cases continue to
be transferred to and filed in the MDL nearly every week.
Complicating matters, when the JPML created this MDL, there was parallel litigation
occurring before the United States Bankruptcy Court for the Southern District of New York

1

This Opinion is intended to explain and supplement Order No. 50; it is not intended to
modify or alter Order No. 50 in any way.

2

arising out of the 2009 bankruptcy of the General Motors Corporation (now called Motors
Liquidation Corporation) (“Old GM”). Specifically, New GM had filed several motions to
enforce before Bankruptcy Judge Robert E. Gerber, seeking to enforce the terms of a Sale Order
and Injunction entered on July 5, 2009 (the “Sale Order”), pursuant to which New GM purchased
the majority of the assets of Old GM “free and clear” of many of Old GM’s liabilities. New GM
argued that the Sale Order barred many of the claims being pursued in this MDL, including any
claims against New GM based on successor liability. (See 09-BR-50026 (Bankr. S.D.N.Y.)
Docket Nos. 2968, 12620). (On April 15, 2015, Judge Gerber ruled on New GM’s motions,
holding that the Sale Order does enjoin certain Plaintiffs’ claims in their entirety and other
Plaintiffs’ claims to the extent that they rely on acts or conduct by Old GM. See In re Motors
Liquidation Co., 529 B.R. 510, 598 (Bankr. S.D.N.Y. 2015). On June 1, 2015, Judge Gerber
entered judgment and an order, pursuant to 28 U.S.C. § 158(d), and Fed. R. Bankr. P. 8006(e),
certifying the judgment for direct appeal to the United States Court of Appeals for the Second
Circuit. (09-BR-50026 (Bankr. S.D.N.Y.) Docket Nos. 13177, 13178). To date, at least three
notices of appeal have been filed in connection with the judgment. (09-BR-50026 (Bankr.
S.D.N.Y.) Docket Nos. 13179, 13180, 13185). Others are likely to follow.)
In that context, the Court entered Order No. 7 on August 7, 2014 (14-MD-2543 Docket
No. 215), indicating that Lead Counsel should “review all existing complaints . . . and file a
consolidated or master complaint with claims on behalf of the class or classes [of economic loss
Plaintiffs], as appropriate.” (Id. at 2-3). 2 The Court explained that “having a consolidated or

2

In Order No. 7, the Court expressed its view that consolidated or master complaints
would be helpful only with respect to economic loss claims and complaints, and would not be
“necessary or prudent with respect to personal injury and wrongful death claims” given, among
other things, the likelihood of case-specific factual and legal issues. (Order No. 7, at 2).

3

master complaint sooner rather than later would streamline and clarify the claims and help
eliminate those that are duplicative, obsolete, or unreflective of developing facts or current law.”
(Id. at 3). In addition, the Court reasoned that having a consolidated or master complaint would
not only facilitate litigation in this Court, but would also help in the management and
adjudication of New GM’s motions to enforce in the Bankruptcy Court. (Id.). In a subsequent
Order (Order No. 8), entered eight days later, the Court set a schedule for the filing of a
consolidated complaint, ordering that Lead Counsel for Plaintiffs make available to all MDL
Plaintiffs a draft version of the complaint within forty-five days and that Lead Counsel file a
final version within sixty days. (Order No. 8 (14-MD-2543 Docket No. 249) 5). The Court
provided that any Plaintiff could file objections to the consolidated complaint, and ordered that
any such objections must be filed within seven days of the filing of the complaint. (Id.).
On October 14, 2014, Lead Counsel filed two Consolidated Complaints. (14-MD-2543
Docket Nos. 345, 347 (errata at 14-MD-2543 Docket No. 379)). The first — which (excluding
counsels’ signatures) is 649 pages long — is based on purchases or leases of General Motors
vehicles before July 11, 2009, the effective date of the Sale Order (the “Pre-Sale Complaint”).
(Consol. Class Action Compl. Against New GM Recalled Vehicles Manufactured By Old GM &
Purchased Before July 11, 2009 (Docket No. 347)). The second, which is 686 pages long, is
based on purchases or leases of General Motors vehicles after July 11, 2009 (the “Post-Sale
Complaint”). (Consol. Compl. Concerning GM-Branded Vehicles Acquired July 11, 2009 Or
Later (Docket No. 345)). Naturally, but significantly, the Consolidated Complaints did not name
as Plaintiffs every single Plaintiff who had filed an economic loss claim in the MDL. Instead,

Accordingly, this Opinion and Order — like the Consolidated Complaints themselves — pertains
only to economic loss claims and complaints.

4

each Complaint named only a subset of the economic loss Plaintiffs in this MDL as proposed
class representatives (see Pre-Sale Compl. 9-45; Post-Sale Compl. 8-52), and indicated that it
was brought on behalf of proposed nationwide classes of all persons who either bought or leased
certain General Motors vehicles within specified time periods. (Pre-Sale Compl. 1; Post-Sale
Compl. 7-8). Both Complaints also included a version of the following provision:
This pleading neither waives nor dismisses any claims for relief against any
defendant not included in this pleading that are asserted by any other plaintiffs
in actions that have been or will be made part of this MDL proceeding, except
by operation of the class notice and (with respect to any Rule 23(b)(3) class)
any opt-out provisions on claims or common questions asserted in this
Complaint and certified by this Court.
(Post-Sale Compl. 1; see Pre-Sale Compl. 2 (similar)). No Plaintiffs objected to the
Consolidated Complaints after their filing.
In advance of the status conference held on November 6, 2014, the parties indicated in a
joint agenda letter that New GM took issue with the above-quoted language in the Consolidated
Complaints, on the theory that “any purported reservation of claims” was “inconsistent with and
improper under this Court’s Orders.” (Joint Agenda Ltr. (Docket No. 376) at 4). At the
conference, the Court noted that it had “come to [its] attention after the two consolidated
complaints were filed [that] there is some ambiguity in the MDL world or MDL context with
respect to what role the ‘consolidated complaint’ plays . . . that is to say, whether these
essentially supersede the individual complaints, at least until the time that remand comes into
play, as would be the case in ordinary litigation with an amended complaint, or if [in] essence
[they serve] some sort of administrative role more specific to the MDL context.” (Nov. 6, 2014
Hr’g Tr. (Docket No. 414) 106). Lead Counsel agreed that the Consolidated Complaints were
intended to have superseding rather than administrative effect — a distinction discussed below

5

— and that they had reached a tentative agreement with New GM that “the complaints that are
not in the consolidated complaint would be deemed dismissed without prejudice, and that
[Plaintiffs] would be giv[en] a . . . deadline for filing any amendments [Plaintiffs] want to make.”
(Id. at 107). The Court directed the parties to continue meeting and conferring about the issue —
and to consider whether the Court should give all Plaintiffs an opportunity to be heard with
respect to the Consolidated Complaints’ effect on their underlying complaints. (Id. at 108-09).
The Court revisited the issue at the next status conference, held on December 15, 2014.
(Dec. 15, 2014 Hr’g Tr. (14-MD-2543 Docket No. 480) 16-39). Three days later, Lead Counsel
and New GM submitted a joint proposed order regarding the Consolidated Complaints’ effect on
the underlying complaints; the Court entered the Order, designated Order No. 29, later that day.
(Order No. 29 (14-MD-2543 Docket No. 477); Defs.’ Resp. Opp’n Elliott, Sesay, & Bledsoe
Pls.’ Mot. Reconsideration MDL Order No. 29 (14-MD-2543 Docket No. 554) (“Defs.’ Resp.”),
Ex. A). Order No. 29 provides, in relevant part, as follows:
[A]ny economic loss allegations, claims, and defendant(s) not included in the
Consolidated Complaints are hereby dismissed without prejudice (1) upon the
effective date of this Order for complaints already transferred to or filed in MDL
2543, and (2) 60 days following the date of transfer or filing for complaints that
are transferred to or filed in MDL 2543 after the date of this Order but prior to
June 4, 2015. . . . If any plaintiff whose claims are dismissed pursuant to this
paragraph objects to dismissal of his or her allegations, claims, or any
defendant(s) not named in the Consolidated Complaints, then such plaintiff may
seek leave with the Court to reinstate his or her allegations or claims or the
addition of such dismissed defendant(s) upon a showing of good cause within 14
days of the dismissal without prejudice.
(Order No. 29 at 2-3). Attached to the Order as Exhibit A was a list of all the individual cases in
the MDL asserting only economic loss claims (to be dismissed without prejudice in their
entirety) or asserting mixed economic loss and personal injury claims (with respect to which the
economic loss claims would be dismissed without prejudice).

6

The Order gave Lead Counsel until June 4, 2015 (since extended to June 12, 2015 (Apr.
24, 2015 Hr’g Tr. (Docket No. 944) 27)), to seek leave of Court to amend the Consolidated
Complaints. (Order No. 29 at 3). Significantly, the paragraph immediately after the one quoted
above also provided that “[a]ny claims and defendant(s) that are dismissed without prejudice and
reinstated pursuant to the preceding paragraph, but which are not included in any amendment of
the Consolidated Complaints filed by June [12], 2015, shall be deemed dismissed with prejudice
as of the later of (a) June [12], 2015 or (b) 90 days following the date the complaint is transferred
to or filed in MDL 2543.” (Id. (emphasis added)). Finally, “[f]or any complaint transferred to or
filed in MDL 2543 after June [12], 2015 (a ‘Post-June [12], 2015 Complaint’),” Lead Counsel
were granted sixty days following the transfer or filing to seek leave to amend the Consolidated
Complaints to add factual matter, claims, or defendants included in the underlying complaint.
(Id. at 3-4). If Lead Counsel did not seek such leave to amend, or if the requested amendment
was denied by the Court, “then any allegations, claims, and/or defendant(s) in the Post-June [12],
2015 Complaint not included in the Consolidated Complaints shall be dismissed with prejudice
at the expiration of the 60-day period or the Court’s order denying the amendment, whichever
occurs first.” (Id. at 4 (emphasis added)).
On January 2, 2015, Gary Peller — counsel for Plaintiffs in Elliott, et al. v. General
Motors LLC, et al., 14-CV-8382; Sesay, et al. v. General Motors LLC, et al., 14-CV-6018; and
Bledsoe, et al. v. General Motors LLC, et al., 14-CV-7631 — filed a motion for reconsideration
of Order No. 29 and, in the alternative, an objection to dismissal of his clients’ claims pursuant to
the procedures set forth in that Order. (14-MD-2543 Docket Nos. 491, 494). Mr. Peller argued,
among other things, that (1) dismissal of individual Plaintiffs’ claims pursuant to Order No. 29
threatened their due process rights (Mem. Law Supp. Reconsideration Order No. 29 Elliott,

7

Sesay, & Bledsoe Pls. (14-MD-2543 Docket No. 502) (“Peller Mem.”) 4, 19); and (2) that most
MDL courts do not treat consolidated complaints as superseding individual complaints and, in
any event, do not dismiss claims of those plaintiffs not named in the consolidated complaints (id.
at 20-24). Mr. Peller also noted that, because the parties’ joint proposed order entered by the
Court had been submitted by Lead Counsel, not by Mr. Peller, and — pursuant to the Court’s
Individual Rules and Practices in Civil Cases, as well as Section VII of Order No. 8 — had not
been submitted on ECF, he had not had an opportunity to be heard on its contents. (Id. at 17 n.
34). Notably, no other Plaintiffs objected to dismissal of their cases or claims.
The Court heard from the parties and Mr. Peller at the status conference held on March
13, 2015. (See March 13 Hr’g Tr. (14-MD-2543 Docket No. 686) 61-83). Following discussion
of Mr. Peller’s motion and objection, the Court reinstated the Elliott, Sesay, and Bledsoe
Plaintiffs’ claims and indicated that it planned to enter an amended order modifying and
clarifying the effects of the Consolidated Complaints on underlying cases, effectively granting
Mr. Peller’s motion for reconsideration. (Id.; Order No. 39 (14-MD-2543 Docket No. 671)
§ VII). The Court directed the parties, in consultation with Mr. Peller, to submit an agreed-upon
proposed amended order or competing orders (id.), which the parties did three weeks later. (See
14-MD-2543 Docket Nos. 809, 810). After reviewing the parties’ submissions, the Court drafted
its own proposed order — incorporating aspects of both sides’ proposals — and gave the parties
an opportunity to be heard with respect to the proposed order at the status conference held on
April 24, 2015. (14-MD-2543 Docket No. 855). After the parties indicated that they had no
objection to (or suggestions for) the proposed order (Apr. 24, 2015 Hr’g Tr. 29) the Court
entered an amended version of Order No. 29 — namely, Order No. 50 — later that day. (14MD-2543 Docket No. 875).

8

Order No. 50 preserves Order No. 29 in one respect: It provides that any economic loss
claims and complaints filed in the MDL as of the date of Order No. 29 that had been dismissed
without prejudice pursuant to that Order (that is, all underlying economic loss claims and
complaints except for the Elliott, Bledsoe, and Sesay complaints, which had been reinstated on
March 13, 2015) remain dismissed. (Id. ¶ 6). Additionally, the Order establishes a system
whereby individual economic loss complaints are dismissed without prejudice within a certain
time after their direct filing in, or transfer to, the MDL, after Plaintiffs are granted an opportunity
to object. Finally, and significantly, the Order clarifies that its provisions “do not extinguish the
claims of individual plaintiffs in the event class certification is denied, or the presentation of
claims by individual plaintiffs who exclude themselves from any class that is certified, under
procedures to be prescribed by the Court (after hearing from the parties) in connection with its
class certification determinations.” (Id. ¶ 3). The Order further clarifies that all dismissals
pursuant to the procedures of the Order are without prejudice, and tolls the statute of limitations
for all Plaintiffs until the class certification phase. Like Order No. 29, therefore, Order No. 50 is
intended to facilitate management of the MDL by clarifying that the Consolidated Complaints do
supersede individual complaints for purposes of pretrial proceedings (including motion practice)
and ensuring that the parties do not have to file or litigate motions in hundreds of individual
cases. At the same time, Order No. 50 is intended to ensure that the administrative convenience
provided by the Consolidated Complaints does not come at the expense of the substantive rights
of any Plaintiffs not named in the Complaints.
When the Court granted Mr. Peller’s motion for reconsideration of Order No. 29 at the
March 13, 2015 status conference, it indicated it might issue a written opinion supplementing its
oral reasons for granting the motion, on the theory that explaining the process and rationale

9

behind entry of what became Order No. 50 might prove useful to the parties in this MDL and to
courts and parties involved in other complex civil litigation. (See Order No. 39 § VII). This is
that opinion.
DISCUSSION
Title 28, United States Code, Section 1407(a), enacted in 1968, provides that “when civil
actions involving one or more common questions of fact are pending in different districts, such
actions may be transferred to any district for coordinated or consolidated pretrial proceedings.”
28 U.S.C. § 1407(a). Such transfer is warranted when the JPML finds that it would “be for the
convenience of parties and witnesses and . . . promote the just and efficient conduct of such
actions.” Id. Promoting “the just and efficient conduct of such actions,” however, is not
necessarily an easy task, especially when, as here, MDLs involve hundreds of independent
actions brought by thousands of plaintiffs. “For it all to work, multidistrict litigation assumes
cooperation by counsel and macro-, rather than micro-, judicial management because otherwise,
it would be an impossible task for a single district judge to accomplish.” In re
Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1231 (9th Cir. 2006)
(hereinafter, “In re PPA”). A district court must be afforded “broad discretion to administer the
[MDL] proceeding as a whole,” because “multidistrict litigation is a special breed of complex
litigation where the whole is bigger than the sum of its parts.” Id. at 1232.
Even as it engages in “macro” judicial management, an MDL court must not lose sight of
the fact that an MDL is comprised of individual actions brought on behalf of individual litigants,
each with his or her (or its) own — sometimes unique — rights and interests. Moreover, for at
least some actions and litigants, the MDL will serve as a way station rather than a final
destination. That is, although many MDLs ultimately result in some form of a global settlement,

10

not all do; and those that do settle often include cases with unique issues or claims that are not
resolved by the global settlement or plaintiffs that are not within the scope of, or opt out of, the
certified class or classes. Significantly, pursuant to the terms of Section 1407, if any case or
claim remains unresolved at the conclusion of pre-trial proceedings, it must be remanded back to
the federal court from which it was transferred (absent a waiver). Indeed, in the seminal case
Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 31, 40 (1998), the
Supreme Court re-affirmed the JPML’s obligation, under Section 1407, to remand any cases not
terminated before the conclusion of pre-trial proceedings — and, in doing so, invalidated a JPML
rule permitting transferee courts to assign a member case to itself for trial. It follows that there is
a fundamental tension embedded in MDLs — between, on the one hand, facilitating effective
motion practice, discovery, and resolution of all claims present in the MDL while, on the other
hand, acknowledging (for purposes of eventual remand and otherwise) the individual character
of all of the actions before an MDL Court. Nowhere is that tension more apparent than in MDL
courts’ different treatment of consolidated or master complaints.
Consolidated or master complaints are not specifically mentioned in the Federal Rules of
Civil Procedure. Nevertheless, courts have interpreted Rule 42(a), which authorizes district
courts to consolidate actions and to make such orders “as may tend to avoid unnecessary costs or
delay,” to authorize the filing of such complaints. See In re Propulsid Prods. Liab. Litig., 208
F.R.D. 133, 141 (E.D. La. 2002) (citing Katz v. Realty Equities Corp. of N.Y., 521 F.2d 1354 (2d
Cir. 1975), and other cases). MDL courts differ, however, in the treatment they afford to
consolidated complaints. Some judges have elected to treat consolidated complaints merely as
an “administrative summary” of the claims to be presented, without an independent legal
existence or effect. See In re Refrigerant Compressors Antitrust Litig., 731 F.3d 586, 590 (6th

11

Cir. 2013) (noting that in many MDLs, “the master complaint is not meant to be a pleading with
legal effect but only an administrative summary of the claims brought by all the plaintiffs”).
“When plaintiffs file a master complaint of this variety, each individual complaint retains its
separate legal existence.” Id.; see also In re Nuvaring Prods. Liab. Litig., No. 08-MD-1964
(RWS), 2009 WL 2425391, at *2 (E.D. Mo. Aug. 6, 2009) (concluding that “the filing of the
master consolidated complaint in this action was simply meant to be an administrative tool to
place in one document all of the claims at issue in this litigation,” and was not intended to be the
subject of Rule 12(b) motion practice). Courts have adopted such an approach based on the
concern that “a master complaint, if given the status of a traditional complaint, could be used to
circumvent the remand requirement of 28 U.S.C. § 1407 by substituting itself for all individual
actions filed in the MDL and thereby frustrate the intended effect of that statute as recognized in
[Lexecon].” In re Propulsid, 208 F.R.D. at 141.
Alternatively, as the Supreme Court recently noted, parties in an MDL “may elect to file
a ‘master complaint’ and a corresponding ‘consolidated answer,’ which supersede prior
individual pleadings.” Gelboim v. Bank of Am. Corp., 135 S. Ct. 897, 904 n.3 (2015). “In such a
case, the transferee court may treat the master pleadings as merging the discrete actions for the
duration of the MDL pretrial proceedings.” Id. Under such an approach, the court treats the
consolidated pleadings as “legally operative” and — should there be motion practice — may
treat them as dispositive with respect to the common legal and factual issues that motivated the
underlying cases’ transfer to the MDL in the first instance. See In re LIBOR-Based Fin.
Instruments Antitrust Litig., 27 F. Supp. 3d 447, 484 (S.D.N.Y. 2014). Particularly in large —
and ever-expanding — MDLs like the one before this Court, the benefits of treating consolidated
complaints as “superseding” are clear: It assists in “streamlining the litigation,” In re Global

12

Crossing, Ltd. Sec. Litig., No. 02-CV-910 (GEL), 2004 WL 2584874, at *3 (S.D.N.Y. Nov. 12,
2004); “controls the course and scope of the proceedings,” In re Katrina Canal Breaches Litig.,
309 F. App’x 836, 838 (5th Cir. 2009) (per curiam) (internal quotation marks omitted); and
facilitates efficient motion practice, see generally In re WorldCom, Inc. Sec. Litig., No. 03-CV4498 (DLC), 2005 WL 2403856, at *3 (S.D.N.Y. Sept. 30, 2005).
Like snowflakes, no two MDLs are exactly alike and, no doubt, whether to require the
filing of a consolidated complaint and, if so, whether to treat such a complaint as
“administrative” or “superseding” will depend on the particulars of a given MDL. Thus, it is
critical that the parties and the court make clear what species of pleadings are being used. Cf.
Refrigerant Compressors Antitrust Litig., 731 F.3d at 591 (“The use of one term to describe two
different types of pleadings leads to confusion. . . . Plaintiffs often file something labeled a
‘master complaint’ without saying whether they mean to file an operative pleading or an
administrative summary, prompting satellite litigation about the status of the documents
submitted to the court.”). Where a consolidated complaint is intended to be legally operative, it
is also critical for the court to make clear precisely what effect the filing of the consolidated
complaint has on the underlying complaints so that the parties can take whatever steps are
necessary to protect and preserve their substantive rights. To streamline the litigation and
eliminate duplicative claims and complaints, dismissal of the underlying complaints may be the
preferred approach. See, e.g., Global Crossing, 2004 WL 2584874, at *3 (“[G]iven the
desirability of streamlining the litigation and eliminating duplicative cases that serve no purpose
in light of the class actions being vigorously pursued by Lead Plaintiffs . . . the Court has put
plaintiffs and their attorneys on clear notice that they must advise the Court, within a specified
time limit, whether they object to consolidation and/or whether, after consolidation is ordered,

13

they continue to see a rationale for pursuing a separate complaint, on pain of dismissal. The vast
majority of plaintiffs have elected to withdraw their complaints in accordance with the
consolidation order, and have consented to dismissal; a handful have timely stated reasons why
their complaints, though consolidated with the principal action for pretrial purposes, should not
be dismissed.”); In re Ford Motor Co. Speed Control Deactivation Switch Prods. Liab. Litig.,
664 F. Supp. 2d 752, 770 (E.D. Mich. 2009) (“Ford SCDS”) (dismissing “claims and defendants
not enumerated” in the consolidated complaint). But a court must make clear whether (and
when) dismissal is without prejudice or with prejudice.
The former option — dismissal without prejudice — helps ensure that the rights and
interests of individual parties will not be inadvertently compromised. After all, an individual
plaintiff can always seek to reinstate his or her lawsuit depending on what happens in the MDL
(in particular, depending on what happens in the class certification phase of the MDL). At the
same time, dismissing without prejudice poses some risk to the principles of efficiency, certainty,
and finality, as the parties in an underlying case could, in theory, sit idly by while discovery and
motion practice take place with respect to the consolidated complaint only to reemerge and
demand to start at (or near) square one. See Ford SCDS, 664 F. Supp. 2d at 769 (concluding that
dismissal of underlying complaints with prejudice was appropriate because “[a]llowing plaintiffs
to silently pursue claims and parties not included in the [master complaint] poses substantial
uncertainty in these proceedings, . . . contrary to the purpose of the MDL process”). By contrast,
dismissal with prejudice provides more certainty and closure. But it is plainly in some tension
with the proposition that consolidation pursuant to Section 1407 is for “pre-trial” purposes only.
Cf. Refrigerant Compressors Antitrust Litig., 731 F.3d at 592 (holding that the filing of a
consolidated complaint had the effect of merging the consolidated actions, but only for “the

14

duration of the pretrial proceedings,” and emphasizing that “when the pretrial phase ends and
cases not yet terminated return to their originating courts for trial [under Section 1407], the
plaintiffs’ actions [would] resume their separate identities”).
Further, if premature, dismissal with prejudice can also jeopardize an individual party’s
rights and interests. For example, if an underlying complaint is dismissed before the class
certification stage, the plaintiff in that action cannot know whether he or she would want to opt
out of a class (assuming a class is even ultimately certified and that the plaintiff would fall within
the scope of the class) and go it alone, leaving him or her in the difficult position of not knowing
whether to take steps to protect his or her rights. Additionally, a dismissed party’s claims are
arguably extinguished, potentially precluding any recovery even in the event of a settlement.
See, e.g., Samuels v. N. Telecom, Inc., 942 F.2d 834, 836 (2d Cir. 1991) (“A dismissal with
prejudice has the effect of a final adjudication on the merits favorable to defendant and bars
future suits brought by plaintiff upon the same cause of action.”) (internal quotation marks
omitted); Petition of Shavit, 197 B.R. 763, 768 (Bankr. S.D.N.Y. 1996) (noting that “a dismissal
with prejudice is a complete adjudication on the merits, with res judicata effect,” and
accordingly “operates to bar another action on the claim that was so dismissed” (internal
quotation marks omitted)). Given that dismissal with prejudice is “a harsh remedy and is
appropriate only in extreme situations,” Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996), it
should not be undertaken lightly or prematurely.
Upon reflection, those were the problems created by this Court’s original order regarding
the effect of the Consolidated Complaints — Order No. 29. As discussed above, that Order
provided that, upon the filing of amended Consolidated Complaints by Lead Counsel (now due
on June 12, 2015), any “claims and defendant(s)” reinstated pursuant to the procedures set forth

15

in the Order but not included in the amended Consolidated Complaints would be dismissed with
prejudice. (Order No. 29 at 3). 3 The Order, however, provided no formal means by which a
Plaintiff whose claims were left out of the amended Consolidated Complaints could object to
Lead Counsel’s omission, let alone object to dismissal of his or claims. Equally important,
because such dismissal was with prejudice, the Order had the unintended effect of potentially
compromising the substantive rights of Plaintiffs whose claims were not included in the amended
Consolidated Complaints. That is, by virtue of being left out of the amended Consolidated
Complaints, a Plaintiff might have been barred from pursuing his or her claims if a class was not
ultimately certified; precluded from participating in — or recovering as part of — any class if
ultimately certified; and prevented from opting out of a class and pursuing his or her claims
separately if a class were ultimately certified. In essence, therefore, Order No. 29 inadvertently
left the fate of certain economic loss Plaintiffs in the hands of Lead Counsel: If Lead Counsel
named a Plaintiff or included that Plaintiff’s claims in the amended Consolidated Complaint,
then that Plaintiff’s rights would be protected and pursued; if Lead Counsel did not, then that
Plaintiff’s rights might be extinguished. 4

3

Strictly speaking, Order No. 29 was silent with respect to the ultimate fate of complaints
and claims that had been dismissed without prejudice but not reinstated. It stands to reason that
those complaints and claims would not have been treated more favorably than complaints and
claims that had been reinstated upon a showing of good cause, so presumably they too would
have been dismissed with prejudice. The Court need not resolve the issue, however, as Order
No. 29 has been superseded by Order No. 50.
4

The same was true of Order No. 29 with respect to Plaintiffs whose complaints are
transferred to this MDL after the June amendment deadline: If Lead Counsel sought leave to
amend the Consolidated Complaints again to include the claims of those Plaintiffs, then their
rights would be preserved; if not, or if the proposed amendment was denied by the Court, then
any claims brought in their individual complaints would be dismissed with prejudice. (Order No.
29 at 3-4).

16

One solution to those problems, of course, would have been to require Lead Counsel to
name every individual Plaintiff in the amended Consolidated Complaints or to include every
underlying claim or theory in the amended Consolidated Complaints. See, e.g., In re Mortg.
Elec. Registration Sys. (MERS) Litig., No. 09-MD-2119 (JAT), 2011 WL 251453, at *11 (D.
Ariz. Jan. 25, 2011) (directing the plaintiffs, “if they choose to seek leave to amend, to jointly
file a proposed consolidated amended complaint together with the various plaintiffs whose
actions are currently joined to this MDL”); see In re Mortg. Elec. Registration Sys. (MERS)
Litig., 09-MD-2119 (D. Ariz.) Docket No. 1424, Ex. 3 (naming, in the consolidated amended
complaint (“CAC”), what appear to be most if not all of the plaintiffs currently in the MDL); see
also In re Mortg. Elec. Registration Sys. (MERS) Litig., No. 09-MD-2119 (JAT), 2011 WL
4550189, at *1 (D. Ariz. Oct. 3, 2011) (noting that defendants’ motions sought “to dismiss all
seventy-two member cases which were directed to join the CAC”). In the Court’s view,
however, that “solution” would have caused even bigger problems. For one thing, it would run
counter to the well-established principle that plaintiffs (here, represented by Lead Counsel) are
“the masters of their complaints.” Standard Fire Ins. Co. v. Knowles, 133 S. Ct. 1345, 1350
(2013). Additionally, given the number of parties and the complexity of the issues in this MDL,
such a requirement would have resulted in amended Consolidated Complaints that were
significantly more unwieldy and complex than the existing Consolidated Complaints (which —
at 649 and 686 pages — are already pushing the envelope on the “short and plain statement”
requirements of Rule 8 of the Federal Rules of Civil Procedure). Finally, and perhaps most
significantly, although requiring Lead Counsel to file “kitchen sink” amended Consolidated
Complaints might protect the rights of all individual Plaintiffs, doing so would significantly
compromise the efficiency that the MDL process was intended to provide. Among other things,

17

it would inevitably require litigation of claims or theories that might not ultimately be pursued —
and by lawyers not necessarily committed to those claims or theories to boot.
Instead of taking that suboptimal approach, the Court tried to strike a more appropriate
balance in the Order that superseded Order No. 29 — namely, Order No. 50. Like Order No. 29,
Order No. 50 makes clear that the Consolidated Complaints (and the anticipated amended
Consolidated Complaints) are legally operative — that is, that they are intended to be
superseding rather than administrative. (Order No. 50 ¶ 5). Additionally, in the interests of
efficiency and certainty, Order No. 50 reaffirms that any complaint or claim that was previously
dismissed and not reinstated pursuant to the procedure set forth in Order No. 29 remains
dismissed. (Id. ¶ 6). Unlike Order No. 29, however, Order No. 50 provides that “all dismissals
are, unless and until the Court orders otherwise, without prejudice.” (Id. at 1). It also gives
Plaintiffs whose claims are not included in the amended Consolidated Complaints an opportunity
to be heard by Lead Counsel and to object to dismissal of their claims. (See id. at 1; see also id.
¶ 8). And finally, in order “to protect the due process rights of economic loss plaintiffs,” it
expressly provides that “dismissal of their individual complaints in order to streamline these
proceedings does not preclude such plaintiffs from (a) recovering as a member of any class that
might be certified or (b) pursuing claims, should a plaintiff choose to do so, if no class is
certified or if the plaintiff opts out of a class that is certified.” (Id. at 1; see also id. ¶ 3 (“The
provisions of this Order do not extinguish the claims of individual plaintiffs in the event class
certification is denied, or the presentation of claims by individual plaintiffs who exclude
themselves from any class that is certified, under procedures to be prescribed by the Court (after
hearing from the parties) in connection with its class certification determinations.”)).

18

Admittedly, in light of those provisions, Order No. 50 does not provide the same degree
of finality or certainty that Order No. 29 provided. More specifically, in New GM’s words, it
does increase the risk of an individual Plaintiff “sit[ting] on the sidelines for a period of months
or years, and then seek[ing] to force defendants to relitigate issues that already have been
decided and to repeat activities that already have occurred.” (Apr. 3, 2015 Ltr. (14-MD-2543
Docket No. 810) 5). In the Court’s view, however, that is the price that must be paid to ensure
that the due process rights of individual Plaintiffs are not trampled in the name of efficiency.
Moreover, Order No. 50 contains several provisions intended to mitigate and address such risks
and help ensure that the MDL process will “promote the just and efficient” resolution of all
member actions. See 28 U.S.C. § 1407. First, the Order provides that any ruling made with
respect to the Consolidated Complaints “shall apply” to non-consolidated actions (that is,
underlying complaints) unless a party shows cause, upon the motion of any party, why the ruling
should not apply. (Order No. 50 ¶ 12). Second, the Order directs the parties to propose an
additional order “to be entered after Plaintiffs file the amended Consolidated Complaints to
ensure that motion practice and discovery with respect to common issues of fact and law are
conducted as part of these MDL proceedings.” (Id. ¶ 9). Through that order, the Court can and
will take steps to ensure that a party cannot “sit on the sidelines” and expect to get discovery that
could have and should have been obtained through the MDL and that motion practice with
respect to common issues of law and fact is conducted by this Court as part of the MDL.
Finally, Order No. 50 contemplates further orders (including the possibility of dismissal
of non-consolidated claims and complaints with prejudice) at or around class certification stage.
At that point, it will presumably be clear whether a class will be certified; and if so, whether a
particular Plaintiff falls within the scope of the certified class. Thus, individual Plaintiffs will be

19

able to take whatever steps are necessary to preserve and protect their claims with a better
understanding of the consequences if they fail to do so. As New GM notes, that does mean that
certain important issues remain unresolved. (Apr. 3, 2015 Ltr. (14-MD-2543 Docket No. 810) at
5). But absent a better sense of what will occur at the class certification phase — including
whether any class certification decisions by this Court will be appealed (see Apr. 3, 2015 Ltr.
(14-MD-2543 Docket No. 809) 4) — setting procedures at this stage of the litigation would be
premature at best and prejudicial to the parties at worst. Accordingly, to protect the rights of
plaintiffs and to avoid setting deadlines that would almost inevitably be subject to change, Order
No. 50 provides that the Court will set such procedures “in connection with its class certification
determinations,” not now. (Order No. 50 ¶ 3).
CONCLUSION
In complex, multidistrict litigation of this sort, courts must grapple with — indeed, juggle
— a host of challenges and considerations. Among the most important of those challenges and
considerations is striking the right balance between, on the one hand, protecting and preserving
the rights and interests of individual litigants while, on the other hand, ensuring that such
solicitude does not undermine the central purpose of MDL consolidation — namely, promoting
“just and efficient” resolution of the parties’ disputes. 28 U.S.C. § 1407(a). In its effort to
streamline the litigation, the Court’s initial order addressing the effect of the Consolidated
Complaints in this MDL — Order No. 29 — failed to grant appropriate weight to the former
concern. For the reasons stated above, however, the Court concludes that Order No. 50 — a
copy of which is attached for ease of reference — does strike the right balance.
As noted, Order No. 50 contemplates entry of additional orders touching on these issues.
Through those orders and others, the Court will undoubtedly refine the balance between the

20

individual and collective even further. For now, however, the Court finds that Order No. 50
appropriately protects the interests of all individual parties while ensuring that the Court is able
to “expeditiously and thoroughly resolve” the common legal and factual issues that motivated the
JPML to transfer these cases here. In re Asbestos Cases of Hatch, James & Dodge, G. Patterson
Keahey, No. 06-CV-741 (TS), 2007 WL 582983, at *2 (D. Utah Feb. 20, 2007).
SO ORDERED.
Dated: June 10, 2015
New York, New York

_________________________________
JESSE M. FURMAN
United States District Judge

21

EXHIBIT 1

Case 1:14-md-02543-JMF Document 875 Filed 04/24/15 Page 1 of 8

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
04/24/2015

-----------------------------------------------------------------------------x
IN RE:
GENERAL MOTORS LLC IGNITION SWITCH LITIGATION
This Document Relates To All Actions
-----------------------------------------------------------------------------x

14-MD-2543 (JMF)
14-MC-2543 (JMF)
ORDER NO. 50

JESSE M. FURMAN, United States District Judge:
[Reconsidering and Amending Order No. 29
Regarding the Effect of the Consolidated Complaints]
This matter is before the Court on the motion of the Elliott, Sesay and Bledsoe plaintiffs to
reconsider Order No. 29 (14-MD-2543 Docket No. 477), regarding the effect on the claims of
economic loss plaintiffs of consolidated complaints filed by Lead Counsel pursuant to Order No. 7
on October 14, 2014 (14-MD-2543, Docket Nos. 345, 347), and any amendments to those
Consolidated Complaints pursuant to the procedures set forth below. As noted in Order No. 39 (14MD-2543 Docket No. 671), the motion for reconsideration is GRANTED.
Specifically, upon due consideration of the parties’ submissions and proposed orders (14-MD2543 Docket Nos. 809, 810; see also 14-MD-2543 Docket Nos. 502, 553, 554, 571), and having given
the parties an opportunity to comment on the Court’s own proposed order (see Order No. 49, 14-MD2543 Docket No. 855), the Court determines that Order No. 29 should be: (1) clarified to specify that
all dismissals are, unless and until the Court orders otherwise, without prejudice; (2) modified to
provide a procedure to allow certain economic loss plaintiffs not named in the amended Consolidated
Complaints to challenge the dismissal of their claims; and (3) revised to protect the due process rights
of economic loss plaintiffs, such that dismissal of their individual complaints in order to streamline
these proceedings does not preclude such plaintiffs from (a) recovering as a member of any class that
might be certified or (b) pursuing claims, should a plaintiff choose to do so, if no class is certified or

Case 1:14-md-02543-JMF Document 875 Filed 04/24/15 Page 2 of 8

if the plaintiff opts out of a class that is certified.
Accordingly, this Order supersedes Order No. 29 in its entirety, except that Order No. 29
remains intact insofar as it dismissed, without prejudice, the allegations, claims, and defendant(s)
included in complaints that already had been transferred to or were filed in MDL 2543 as of the date
of entry of that Order and not included in the Consolidated Complaints, which complaints were listed
in Order No. 29, Exhibit A. (See 14-MD-2543 Docket No. 477; see ¶ 6, infra).
Background
In Order No. 7, the Court directed Lead Counsel to review all the existing complaints and “file
a consolidated or master complaint with claims on behalf of the class or classes, as appropriate. After
doing so, any counsel who believed that their claims should have been included, but were not, would
have an opportunity to object.” The Court’s intent was that the Consolidated Complaints “would
streamline and clarify the [economic loss] claims and help eliminate those that are duplicative,
obsolete, or unreflective of developing facts or current law.” (Order No. 7 (14-MD-2543 Docket
No. 215) at 3). In Order No. 8, the Court set a schedule for filing the Consolidated Complaints, which
provided opportunities for other plaintiffs’ counsel to submit comments on the draft Consolidated
Complaints and to object to the final Consolidated Complaints. (Order No. 8 (14-MD-2543 Docket
No. 249) at 5).
On October 14, 2014, Lead Counsel filed two Consolidated Complaints (14-MD-2543 Docket
Nos. 345, 347). The first Consolidated Complaint asserts economic loss claims concerning GMbranded vehicles (manufactured by either General Motors Corporation (“Old GM”) or General
Motors LLC (“New GM”)) that were acquired July 11, 2009 or later. The second Consolidated
Complaint asserts economic loss claims for owners of vehicles manufactured by Old GM and
purchased before July 11, 2009. In each, New GM was the sole defendant. Each of the Consolidated
Complaints includes the following caveat:
2

Case 1:14-md-02543-JMF Document 875 Filed 04/24/15 Page 3 of 8

This pleading neither waives nor dismisses any claims for relief against any
defendant not included in this pleading that are asserted by any other plaintiffs in
actions that have been or will be made part of this MDL proceeding, except by
operation of the class notice and (with respect to any 23(b)(3) class) any opt-out
provisions on claims or common questions asserted in this Complaint and certified
by this Court.
(14-MD-2543 Docket No. 345 at 1; 14-MD-2543 Docket No. 347 at 2). The Consolidated Complaint
as to vehicles manufactured by Old GM and purchased before July 11, 2009, further alleges that
“[c]ertain claims for certain parties may, consistent with 28 U.S.C. § 1407 and the caselaw
thereunder, be matters for determination on remand by transferor courts.” (14-MD-2543 Docket
No. 347 at 2).
The Court and certain of the parties are concerned that the above language in the Consolidated
Complaints may create ambiguity as to the status of economic loss claims not asserted in the
Consolidated Complaints. To clarify the effect of the Consolidated Complaints (and any amended
Consolidated Complaints) on claims asserted in these MDL proceedings, the Court makes the
following findings and adopts the following procedures.
General Provisions
1.

In its June 9, 2014 Transfer Order transferring the MDL 2543 proceedings to this

Court, the Judicial Panel on Multidistrict Litigation found that “[c]entralization under Section 1407
will eliminate duplicate discovery; prevent inconsistent pretrial rulings, including with respect to
class certification; and conserve the resources of the parties, their counsel, and the judiciary.” In re:
General Motors LLC Ignition Switch Litigation, 26 F. Supp. 3d 1390, 1391 (J.P.M.L. 2014).
2.

Order Nos. 7, 29, and this Order were and are intended to streamline and simplify the

operation and management of MDL 2543 by reducing the need of the parties to file or respond to
(and the Court to decide) pretrial motions in multiple underlying complaints. The Consolidated
Complaints and their amendments are intended to bring together common allegations and claims
asserted by economic loss plaintiffs in these MDL proceedings. The Consolidated Complaints have
3

Case 1:14-md-02543-JMF Document 875 Filed 04/24/15 Page 4 of 8

been, and will continue to be, critical tools to organize and conduct motion practice, both here and in
the Bankruptcy Court, to address class certification, and to manage the discovery process. They are
the operative pleadings for these purposes.
3.

The provisions of this Order do not extinguish the claims of individual plaintiffs in the

event class certification is denied, or the presentation of claims by individual plaintiffs who exclude
themselves from any class that is certified, under procedures to be prescribed by the Court (after
hearing from the parties) in connection with its class certification determinations.
Procedures for Dismissal Without Prejudice
4.

As stated on the record at the status conference earlier today, Lead Counsel has until

June 12, 2015 (i.e., almost six weeks after May 5, 2015, the expected date for substantial completion
of Phase One discovery pursuant to Order No. 20) to amend the Consolidated Complaints based upon
discovery or other developments in the case, including the April 15, 2015 ruling — and any
subsequent rulings — by the Bankruptcy Court. Thereafter, it shall be presumed that no further
amendment will be permitted, except upon good cause shown as to factual matters and claims that
are thereafter revealed by discovery or alleged for the first time in cases that are transferred to or filed
in the MDL after the above-described deadline.
5.

The Court has designated the Consolidated Complaints as the operative class action

complaints in these MDL 2543 proceedings. The Court entrusts Lead Counsel with the identification
and appropriate pleading of common claims asserted in the lawsuits consolidated in this MDL, after
consultation with other plaintiffs’ counsel, subject to the procedures for objections to be described in
the paragraphs and sub-paragraphs below. Accordingly:
(a) By joining the Consolidated Complaints, those plaintiffs named in the Consolidated
Complaints have amended their prior pleadings, and — to the extent they were not already
dismissed pursuant to the terms of Order No. 29 — their underlying complaints are
4

Case 1:14-md-02543-JMF Document 875 Filed 04/24/15 Page 5 of 8

dismissed without prejudice. The underlying complaints of any plaintiffs added to any
amended Consolidated Complaints (see ¶ 4, supra) will be deemed dismissed on the date
of the submission of those Complaints (see ¶ 7, infra).
(b) Lead Counsel shall provide a copy of any draft amended Consolidated Complaints by
secure electronic means to counsel for each economic loss plaintiff fourteen (14) days
prior to the amendment deadline. Plaintiffs’ counsel will provide Lead Counsel with any
comments or proposed changes seven (7) days prior to the amendment deadline.
(c) Plaintiffs will have fourteen (14) days from the filing of the amended Consolidated
Complaints to object and Lead Counsel shall have fourteen (14) days to respond. Any
such objections and responses shall not exceed five (5) single-spaced pages and shall be
filed in both 14-MD-2543 and 14-MC-2543. No replies shall be allowed without leave of
Court.
6.

With respect to complaints filed in or transferred to this MDL before December 18,

2014, allegations, claims, and defendant(s) not included in the Consolidated Complaints, as well as
the complaints of plaintiffs not named in the Consolidated Complaints, were dismissed without
prejudice effective December 18, 2014. (See Order No. 29, Ex. A). The time to object to that
dismissal without prejudice of the cases identified on Order No. 29, Exhibit A having passed, all of
those complaints — with the sole exceptions of the Elliott, Bledsoe, and Sesay complaints, which
were reinstated by the Court on March 13, 2015 (see Order No. 39 (14-MD-2543, Docket No. 671)
§ VII) — remain dismissed.
7.

With respect to complaints filed in or transferred to this MDL since December 18,

2014, up until the time of the filing of the amended Consolidated Complaints, any allegations, claims
and defendant(s) that are not included in the amended Consolidated Complaints shall be deemed
dismissed without prejudice with respect to the plaintiffs named in such amended Consolidated
5

Case 1:14-md-02543-JMF Document 875 Filed 04/24/15 Page 6 of 8

Complaints; and any allegations, claims and defendant(s) shall be deemed dismissed without
prejudice with respect to plaintiffs who are not named in such amended Consolidated Complaints,
unless such plaintiff not named in the Consolidated Complaints seeks leave of Court to reinstate
his/her claims, for good cause shown, within fourteen (14) days of the filing of amended Consolidated
Complaints. Lead Counsel shall file, concurrently with the amended Consolidated Complaints, a list
of the allegations, claims, and/or defendant(s) to be dismissed without prejudice pursuant to this
paragraph.
8.

With respect to claims transferred to or filed in MDL 2543 after the filing of amended

Consolidated Complaints, Lead Counsel shall have 60 days following transfer or filing to seek leave
to amend the Consolidated Complaints, for good cause shown, to address any factual matter, claims
and/or defendant(s) raised for the first time in such pleadings. If Lead Counsel do not seek leave to
amend the Consolidated Complaints within the 60-day period, or if the requested amendment is
denied by the Court, then any allegations, claims, and defendant(s) not included in the amended
Consolidated Complaints shall be dismissed without prejudice at the expiration of the 60-day period
or the Court’s order denying the amendment, whichever occurs first, unless such plaintiff not named
in the Consolidated Complaints sustains an objection to dismissal pursuant to the following
procedure:
a. On August 15, 2015, and every month thereafter (i.e.,, on the fifteenth day of every
month) until the Court orders otherwise, Lead Counsel and Counsel for New GM
shall jointly submit a list of allegations, claims, and defendant(s) in later-filed
complaints to be dismissed without prejudice pursuant to this paragraph.
b. Any such plaintiff not named in the Consolidated Complaints may seek leave of
Court to reinstate his/her claims, for good cause shown, within fourteen (14) days
of the filing of the list naming his/her complaint to object to dismissal. Lead
6

Case 1:14-md-02543-JMF Document 875 Filed 04/24/15 Page 7 of 8

Counsel and New GM shall have fourteen (14) days to respond. Any such
objections and responses shall not exceed five (5) single-spaced pages and shall
be filed in both 14-MD-2543 and 14-MC-2543. No replies shall be allowed
without leave of Court.
9.

The parties should meet and confer with an eye toward proposing an order to be

entered after Plaintiffs file the amended Consolidated Complaints to ensure that motion practice and
discovery with respect to common issues of fact and law are conducted as part of these MDL
proceedings. Among other things, the proposed order should create a process requiring any Plaintiffs’
counsel with allegations, claims, or defendants not included in the amended Consolidated Complaints
to coordinate with Lead Counsel to ensure that discovery as to common issues of law and fact is
completed as part of the MDL proceedings. Additionally, the parties should discuss whether, when,
and how the Court should create a process to litigate the viability of allegations, claims, or
defendants not included in the amended Consolidated Complaints.
10.

For any allegations, claims, and defendants that have been or will be dismissed

pursuant to Order No. 29 or this Order, the statute of limitations shall be tolled from the date of
dismissal to 30 days after the Court decides Lead Counsel’s motion for class certification.
Obligations of the Parties with Respect to Allegations, Claims, or Defendant(s) that are
Reinstated Pursuant to the Preceding Paragraphs
11.

If any allegations, claims or dismissed defendant(s) are reinstated after dismissal

without prejudice pursuant to Order No. 29 or this Order, such individual economic loss plaintiff shall
serve, in accordance with Order No. 30 (14-MD-2543 Docket No. 758), a plaintiff fact sheet (“PFS”)
within 30 days of this Order or of such reinstatement, whichever is later. Other than the obligation
to serve a PFS, any individual economic loss action that is not dismissed pursuant to Order No. 29 or
this Order shall be stayed and no motion or responsive pleading to any allegations or claims or on
behalf of a defendant reinstated by the Court shall be due unless and until ordered by the Court.
7

Case 1:14-md-02543-JMF Document 875 Filed 04/24/15 Page 8 of 8

Procedure for Objecting to Application of Rulings on the Consolidated Complaints to
Underlying Actions
12.

In order to achieve the efficiencies of consolidation while respecting the principle that

consolidation may not diminish the rights of plaintiffs, the Court adopts the following procedure to
apply rulings made on the basis of consolidated pleadings to non-consolidated actions (i.e., actions
involving plaintiffs not named in the Consolidated Complaints). Rulings made with respect to the
Consolidated Complaints shall apply to non-consolidated actions unless challenged as follows: Upon
the application of any party to these MDL proceedings — to be made no later than fourteen (14) days
following a Court ruling on the Consolidated Complaints — a party in a non-consolidated action shall
be required to show cause within fourteen (14) days why a ruling made on the basis of the
Consolidated Complaints should not apply to the non-consolidated action. The initial moving party
shall then have seven (7) days to respond. Absent leave of Court, any such show cause papers and
responses shall not exceed five (5) single-spaced pages and shall be filed in both 14-MD-2543 and
14-MC-2543. No replies shall be allowed without leave of Court.
SO ORDERED.
Date: April 24, 2015
New York, New York

8