Harmon Explores "Count-Me-In" Complaints in Multidistrict Litigation

Shook Associate Jason Harmon has written an article for DRI's For the Defense on the difficulties courts face in enforcing pleading standards to complaints filed as part of multidistrict litigation. "The common practice is for plaintiffs to file a 'master' complaint" in MDLs that is then supplemented by individual complaints incorporating the master complaint's allegations, Harmon explains, but parties tend to disagree on how much leniency these pleadings should be given.

"Recognizing that lowering the pleading bar for MDL plaintiffs is on legally tenuous footing and the importance of enforcing pleading requirements at the outset of litigation, some courts have challenged the count-me-in approach," Harmon states. "Though it may not be realistic to include the requisite factual specificity for every plaintiff in a master complaint, plaintiffs can include such facts in their individual short form complaint . . . Indeed, the Federal Rules require it . . . The short form complaint can, for example, include a space for individual plaintiffs to include the who, what, and when of their fraud allegations, the particular statement they believe constitutes an express warranty, or the factual justification for tolling the statute of limitations. The parties and court can then come up with procedures for efficiently streamlining the dismissal of cases or claims that are not adequately pleaded."