In 2023, only 11% of MDL meetings were directed to lawyers of color

In the multidistrict Juul electronic cigarette case, U.S. District Judge William Orrick asked lawyers to provide a detailed demographic breakdown showing which lawyers did what exactly in each case.

Nine months ago, he received a report: Of the 62 plaintiff firms involved in the case, not a single black or Latino lawyer had worked on the dispute. During the hearing, he told lawyers: “You have to do better. The courts must do better.”

“I wanted to see who was testifying and who was working hard on this case,” Orrick told Law.com. “Although women did a lot of the hard work, and there were two extremely talented women as lead lawyers during the trial, there were no Blacks and very few Latinos who did any work.”

Juul’s multidistrict litigation arose in 2019, when only 7% of leadership appointments went to non-white lawyers, according to Law.com statistics. That number rose to 16% in 2021, but has been declining over the past two years. According to Law.com’s exclusive data, in multidistrict litigation created in 2023, only 11% of leadership positions went to non-white lawyers, down from 13% in 2022. The ethnic makeup of 1% of lawyers in the 2023 data could not be determined.

“It’s disappointing to me,” Orrick said of the declining numbers. “If you believe that diversity in all its forms is important in defining excellence and equity, these MDL courses are a great opportunity for people to learn and practice.”

“It’s not an easy task”

Statistics for 2023 remain higher than the historical average for attorneys of color appointed in multidistrict litigation. According to Law.com statistics, white lawyers dominated in 2016–2019 – 95% of nominations.

However, these numbers remain stubbornly low. In fact, of the 19 multidistrict court dockets created in 2023 that included appointment orders, eight of them were headed by all-white men and women. These eight positions accounted for almost 25% of the total number of lawyers appointed to leadership positions last year.

One glaring exception was a multidistrict dispute over hair straighteners, which the lawsuit linked to reproductive cancers. Of the 35 lawyers appointed, 12 were lawyers of color. That case alone, in which many of the plaintiffs are black women, may have even caused a “jump” in the numbers, said Diandra “Fu” Debrosse, who became co-lead counsel in the multidistrict hair relaxer lawsuit.

“This is the only case where I know so many people of color and so many diverse lawyers,” said Debrosse, of DiCello Levitt in Birmingham, Alabama. And that includes not only the position of general counsel, which he shares with three other attorneys, including Ben Crump of Ben Crump Law in Tallahassee, Florida, but also the plaintiffs’ steering committee, the plaintiffs’ executive committee and the leadership development committee. “It’s largely people of color.”

Larry Taylor of the Cochran Firm in Houston said 2021 and 2022 are “tough years” for mass torts. But he also noted that lawyers of color with the most nominations in 2023 were managing partners or namesakes at their firms. Of the 30 attorneys who were appointed at least twice in 2023, only three were non-white: Taylor, Crump and Gregory Cade of the Environmental Litigation Group in Birmingham, Alabama. Taylor was appointed to the plaintiffs’ executive committees in the multidistrict litigation involving C.R. Bard Inc.’s hair relaxers and implantable port catheter. Crump, in addition to his role as general counsel for hair relaxers, serves on the plaintiffs’ executive committee in the multidistrict antitrust action involving insulin pricing, and Cade serves on the plaintiffs’ steering committees in the same two briefs.

“When you look at it, part of the problem may be the financing of these companies,” Taylor said. “Being a leader is not an easy or cheap task.”

He added that judges are increasingly asking lawyers in their case orders to provide information on whether they have accepted financing for court proceedings in a given case.

“I’m not saying the orders are being issued, but it’s a way to prevent women and minority-owned businesses from entering the market, or, better yet, as I’m looking for a term, to continue to grow within the industry?” he said. “And it’s skewed. When you represent Johnson & Johnson, you don’t ask someone about their shareholders. You don’t ask someone about their corporate structure or where they get their funding on the defense side, that could potentially impact the number of minorities you see in the industry.”

This means that many of the lawyers who received the most nominations in 2023 remain at the same old firms as they have for years: Hausfeld topped the list with seven nominations, including Washington partner Swathi Bojedla, general counsel multidistrict court proceedings in the area of ​​competition protection regarding RealPage software. DiCello Levitt, including general counsel Debrosse, finished second with six nominations.

“A breakdown of will and priority”

Of course, not all lawyers who are appointed will necessarily have the same level of financial resources. Orrick acknowledged, however, that judges who confirm leadership teams play a large role in diversifying the scope of plaintiffs’ advocacy.

“The referee makes the selection, so he plays a key role in it,” he said. “You need to analyze the needs of a given case, the people who have applied, whether there are people who have not applied who you know by reputation or who are worth adding.

“And if you have a big product issue that’s going to impact people across the country and that’s going to reach a broad swath of the American public,” Orrick added, “then you should be looking at diversity, ethnicity, race, all of those things to build a team , who will be excellent and able to address the concerns of communities affected by the alleged problem.”

Debrosse said having judges speak out helps because it motivates company leaders to know they will be held accountable.

Another factor, however, she added, is the fact that many older and more experienced lawyers of color are already scheduled to trial other multi-district lawsuits. The key, she said, is having more options.

“There are a larger number of white lawyers who have come to this place to be appointed,” she said. “Part of what we’re doing is having a pipeline so that we don’t keep bringing in the same lawyers of color.”

Debrosse and Crump are the founders of Shades of Mass, whose annual meeting was held this month in Houston. Founded two years ago, Shades of Mass aims to increase the number of attorneys of color in mass tort cases.

Orrick said the findings in his Juul demographics report, which he plans to make public, show that the plaintiffs’ companies “didn’t have a very deep analysis.”

“And for me it is a lack of will and lack of priorities,” he said. “That’s why I think these firms should think about and make it a priority to hire lawyers who are not white to train and nurture them.”

This training also applies to lawyers of color who already have experience in mass tort cases. Taylor said he often picks up the phone and calls top plaintiff firms to encourage them to choose a non-white lawyer for their leadership position. He believes lawyers of color already serving as general counsel should mentor younger lawyers. He hopes that if there are enough discussions, this number will increase again in 2025.

“I don’t think it’s bad faith in most cases,” he said. “We just need to have more discussions to move the needle forward, and diversity produces better outcomes for everyone.”