Trial Magazine

The first federal multidistrict litigation (MDL) was formed in 1968, but it took 47 years for the first female-majority plaintiffs’ steering committee (PSC) to be appointed.¹ And only a handful of women in the country have ever served as lead counsel, whether solo or with someone else.² But as the number of female judges increases, the emphasis on gender diversity in leadership appointments has come to the forefront. And several women are paving the way for the rest.

One of those trailblazers is Philadelphia attorney Dianne Nast. She was first appointed colead counsel of an MDL in the early 1980s and has held leadership appointments frequently since then, including sole lead counsel in the Wellbutrin SR antitrust litigation and as a member of the PSC in the NFL concussion litigation.

Nast acknowledged how unusual it is, even in 2017, for women to be in the leadership ranks, let alone be lead counsel. She explained that the legal profession was dominated by men for so long that it created a trickle-down effect on litigation: “Lead counsel positions went to men, as well as most of the steering committee appointments.”

The numbers don’t lie: A study released by the Women in Legal Leadership Project at Temple University’s Beasley School of Law in Philadelphia found that the overall rate of women in MDL leadership appointments between 2011 and July 2016 was only 16.5 percent.³ The first of its kind, the study also found that men were appointed to leadership positions five times more often than women, with 37 percent of all cases having no women in the leadership structure.⁴ Only three of the 145 cases examined had female-only lead counsel, such as San Francisco attorney Elizabeth Cabraser, who was the sole lead counsel for the Volkswagen diesel emissions MDL.⁵

“It’s common knowledge that women are quite the minority in the leadership appointment world. But that gender gap had never been quantified,” said Dana Alvaré, an attorney and doctoral candidate in sociology, who wrote and worked on the study.

One of the study’s more positive takeaways was that overall female leadership appointments jumped to 27.7 percent in 2015 from 17.1 percent in 2014.⁶ Further research must be done to determine whether that number is a true indicator of progress or an anomaly, Alvaré said. She is now examining recent statistics and doing in-depth interviews with female attorneys who have been appointed to leadership positions and the judges involved in those appointments.

“The numbers only tell us so much,” Alvaré said. “We also need to look at what is happening in people’s firms; some women are not even getting the opportunity to be able to apply for these positions.” Nast called the increase from 16 to nearly 28 percent “a sign of things to come, because the bar has changed.”

New York City attorney Jayne Conroy echoed those sentiments. Much like Nast, Conroy has held many leadership positions, including being a member of the plaintiffs’ executive committee in the DePuy hip implant, Volkswagen diesel emissions, and Toyota unintended sudden acceleration MDLs. Conroy noted that being a partner at a law firm is critical, and that is part of the reason for the gender gap in leadership appointments. “Not only do you need the experience, but you also need to be in a position to control the funds enough to do the work and guide the case.”

Both Nast and Conroy emphasized that female judges have been a huge catalyst for change. “There are now many more female judges, and they started asking the same question: ‘Where are all the women?’” Nast said. “These judges are leading the way, and they have conveyed this to their male counterparts, who are also now conscientiously looking for diversity.”

In 2015, Judge Kathryn Vratil of the District of Kansas approved the first female-majority PSC in an MDL against Ethicon, Inc. And in 2016, Judge Cynthia Rufe of the Eastern District of Pennsylvania appointed two women, Nast and Philadelphia attorney Roberta Liebenberg, as colead counsel—a rare occurrence—in In re Generic Pharmaceuticals Pricing Antitrust Litigation.⁷ She also appointed five women to the case’s 12-attorney PSC.⁸

“Judge Rufe has every attorney interested in a leadership position apply with a limited three-page application, and they can then speak to the court for a few minutes. Many judges are doing that now instead of slates. And if judges still allow attorneys to submit slates, those judges may look at a slate and say, ‘What about diversity?’” Nast noted. Conroy added that judges’ involvement has been crucial. “With the focus on diversity, lawyers who are creating slates are well aware that judges will not accept them if they are not diverse.”

“Female judges have started a huge support network for female lawyers. You’re even getting orders stating, ‘Please let younger lawyers make arguments in court and let them get experience.’ That’s unheard of,” Nast said.

Organizations such as Women En Mass (WEM) are also paving the way. Founded in 2013 to promote diversity in leadership roles across the mass torts spectrum, it now has about 400 members.⁹

“WEM is an organization that now has a voice—and a voice that people listen to,” Nast said. “Women are a lot more organized than we were even five years ago. We need to stand by one another.”

Alyssa E. Lambert is the managing editor of Trial magazine. She can be reached at alyssa.lambert@justice.org.

Notes

1. The U.S. Judicial Panel on Multidistrict Litigation was created in 1968, and it was tasked with overseeing MDLs. The first female-majority PSC was appointed in 2015. See Interview by Diane M. Zhang, A Milestone in Gender Equality, Trial 44 (July 2016).
2. Aebra Coe, Female Lawyers are Still Struggling to Land Lead MDL Roles, Law360 (Mar. 16, 2017), www.law360.com/articles/899783/female-lawyers-are-still-struggling-to-land-lead-mdl-roles.
3. Dana Alvaré, Vying for the Lead in the Boys’ Club: Understanding the Gender Gap in Multidistrict Litigation Leadership Appointments, Temple Univ. Beasley Sch. of Law, Sheller Ctr. for Social Justice, at 6, (Mar. 20, 2017), www2.law.temple.edu/csj/publication/mdl-study/.
4. Id.
5. Id.
7. Id. at 7.
8. Max Mitchell, In ‘Extremely Rare’ Move, Two Women Appointed to Lead Antitrust MDL, 
   The Legal Intelligencer (Nov. 30, 2016), http://tinyurl.com/kxd3nbp. In March, that case was consolidated with 10 related generic drug price-fixing MDLs, with Nast and Liebenberg leading the entire consolidated litigation: www.jpml.uscourts.gov/sites/jpml/files/MDL-2724-Tag-Along_Motion_Granted-03-17.pdf. 
9. Mitchell, supra note 7.
10. Visit www.womenenmass.com for more information.