Thursday, October 15, 2020
Yesterday, Judge Polster partially granted the plaintiffs’ motion for sanctions against the Allergan and Teva defendants in the In re: National Prescription Opiate Litigation MDL. The issue was “whether the Plaintiffs are entitled to some relief, given that they only recently received a critical document (‘the Cegidim Report’), even though the Court ordered the Report must be produced and even though Plaintiffs asked Allergan and Teva for it numerous times during discovery in the last 18 months.”
Judge Polster explained:
[I]f the Cegidim Report supported, rather than contradicted, assertions Teva and Allergan made in their summary judgment briefing, it seems awfully likely the defendants would have worked more diligently to find it. And that is the level of diligence that was required, regardless.
Here is the full order:
Friday, September 25, 2020
Yesterday, the Sixth Circuit issued a 2-1 decision in In re National Prescription Opiate Litigation, a much-anticipated case about the certification of a negotiation class in the Opioid MDL.
The majority reversed the district court’s certification of a negotiation class. Judge Clay’s majority opinion called it a “novel form of class action.” He observes that Rule 23 “does not mention certification for purposes of ‘negotiation’ or anything along those lines” and writes that “a new form of class action, wholly untethered from Rule 23, may not be employed by a court.” He also found that the district court’s certification of the negotiation class had “papered over the predominance inquiry” required by Rule 23(b)(3).
Judge Moore disagrees, with a 40+ page dissent that begins:
The Federal Rules of Civil Procedure were not written and have never been interpreted to manacle district courts that innovate within the Rules’ textual borders. The district court has breathed life into a novel concept—a class certified for negotiation purposes—to aid in its Promethean duty to secure the just, speedy, and inexpensive resolution of this byzantine multidistrict litigation. We should be in the business of encouraging, not exterminating, such resourcefulness. Certifying a negotiation class honors the Rules’ equitable heritage, complements the settlement class’s history, hews to Federal Rule of Civil Procedure 23’s textual requisites, and stirs no constitutional or policy qualms. So, with respect, I dissent.
The entire dissent is worth a read. Before proceeding to analyze whether the district court properly certified the proposed negotiation class, Part I of Judge Moore’s opinion addresses the proper approach to interpreting and applying the Federal Rules of Civil Procedure, and Part II provides an engaging history of Rule 23.
Thursday, July 30, 2020
Bob Klonoff has posted drafts of two articles on SSRN: Class Action Objectors: The Good, the Bad, and the Ugly, which is forthcoming in the Fordham Law Review; and The Judicial Panel on Multidistrict Litigation: The Virtues of Unfettered Discretion, which is forthcoming in the University of Missouri-Kansas City Law Review.
Here are the abstracts:
Tuesday, July 28, 2020
The Sixth Circuit will hear oral argument this morning (9:00 am EDT) in the Opioid MDL (In re: Nat’l Prescription Opiate Litigation, No. 19-4097 & 19-4099).
You can listen live to the audio at this link. Sitting on the panel are Judges Moore, Clay, and McKeague.
Friday, June 5, 2020
Today the Lewis & Clark Law Review posted the symposium issue, featuring contributions by Jennie Anderson; Bob Klonoff; Teddy Rave & Zach Clopton; Dave Marcus; David Noll; Lynn Baker & Steve Herman; Josh Davis & Brian Devine; Alexi Lahav; Elizabeth Cabraser & Adam Steinman; Bob Bone; Gerson Smoger; Judith Resnik, Stephanie Garlock & Annie Wang; Brian Fitzpatrick; and Arthur Miller.
My personal thanks to the Pound Institute, Lewis & Clark, and Bob Klonoff for organizing a wonderful symposium, and to the law review editors for their excellent editorial work. It’s great to see the finished product!
Thursday, April 16, 2020
Yesterday a Sixth Circuit panel issued its decision in In re National Prescription Opiate Litigation, granting the pharmacy defendants’ petition for a writ of mandamus regarding the district court’s order allowing the counties to amend their complaints to add new claims in advance of an upcoming bellwether trial. Judge Kethledge’s opinion begins:
The rule of law applies in multidistrict litigation under 28 U.S.C. § 1407 just as it does in any individual case. Nothing in § 1407 provides any reason to conclude otherwise. Moreover, as the Supreme Court has made clear, every case in an MDL (other than cases for which there is a consolidated complaint) retains its individual character. That means an MDL court’s determination of the parties’ rights in an individual case must be based on the same legal rules that apply in other cases, as applied to the record in that case alone. Within the limits of those rules, of course, an MDL court has broad discretion to create efficiencies and avoid duplication—of both effort and expenditure—across cases within the MDL. What an MDL court may not do, however, is distort or disregard the rules of law applicable to each of those cases.
The rules at issue here are the Federal Rules of Civil Procedure, which have the same force of law that any statute does. The petitioners seek a writ of mandamus, on grounds that, in three instances, the district court has either disregarded or acted in flat contradiction to those Rules. We grant the writ.
Thursday, February 27, 2020
Bob Klonoff has published Federal Multidistrict Litigation in a Nutshell (West Academic). The preface begins:
This text is for students taking courses in complex litigation, advanced civil procedure, or mass torts. It is also designed as a concise book for members of the bench and bar who are handling multidistrict litigation cases. Its focus is on all aspects of federal multidistrict litigation (MDL), including statistics on MDL cases; comparisons with other aggregation devices (such as class actions); the decision of the Judicial Panel on Multidistrict Litigation (the Panel) to centralize cases (including the standards for centralization and the selection of the MDL district court and judge); appellate review of Panel decisions; tag-along cases; the role of the MDL transferee judge (including case management, designating lead lawyers and committees, deciding motions, conducting bellwether trials, overseeing settlements, and awarding attorneys’ fees); choice-of-law issues in MDLs; personal jurisdiction and venue issues; remand of transferred cases; federal/state coordination (including state MDL statutes); and proposals for reform of MDL practice.
Friday, February 7, 2020
Friday, December 13, 2019
Yesterday the Fifth Circuit issued a per curiam opinion in In re: Chinese-Manufactured Drywall Products Liability Litigation. This appeal was brought by certain plaintiffs who had filed their claims after an initial class-wide settlement agreement. This lead to a subsequent agreement (the “New Claims Settlement Agreement”), which had “conferred to the District Court exclusive jurisdiction for the purpose of administering, supervising, construing and enforcing the Agreement.”
The Fifth Circuit panel (Judges Higginbotham, Stewart, and Engelhardt) dismissed the appeal for lack of jurisdiction, finding that these plaintiffs had waived their right to appeal: “In light of the explicit waiver in the New Class Settlement Agreement and the two additional and express waivers incorporated therein, we find that Appellants clearly and unequivocally waived their right to appeal.”
Monday, November 18, 2019
Pound Civil Justice Institute/Lewis & Clark Law School Symposium: "Class Actions, Mass Torts, and MDLs: The Next 50 Years"
Tuesday, September 3, 2019
Symposium: “Class Actions, Mass Torts, and MDLs: The Next 50 Years” (Lewis & Clark Law School, November 2019)
The Pound Civil Justice Institute and Lewis & Clark Law School are co-sponsoring a symposium entitled Class Actions, Mass Torts, and MDLs: The Next 50 Years.
It will take place at Lewis & Clark Law School in Portland, Oregon on November 1 & 2, 2019.
You can register to attend the symposium here. It’s free for judges, law clerks, academics, law students, and public officials.
Thursday, June 6, 2019
Today the en banc Ninth Circuit issued its decision in In Re Hyundai and Kia Fuel Economy Litigation (covered earlier here). Judge Nguyen authors the majority opinion, and Judge Ikuta authors a dissenting opinion.
Contrary to the earlier panel ruling, the en banc Ninth Circuit affirms the district court with respect to both class certification and approval of the settlement.
Thursday, March 7, 2019
Today on the Courts Law section of JOTWELL is Roger Michalski’s essay, A Primer on Opioid-Epidemic Litigation. Roger reviews a recent article by Abbe Gluck, Ashley Hall & Gregory Curfman, Civil Litigation and the Opioid Epidemic: The Role of Courts in a National Health Crisis, 46 J.L. Med. & Ethics 351 (2018).
Wednesday, March 6, 2019
Linda Mullenix has published Policing MDL Non-Class Settlements: Empowering Judges Through the All Writs Act, 37 Rev. Litig. 129 (2018). Here’s the abstract:
Commentators have identified that one of the most significant problems in current MDL practice is the lack of judicial authority over non-class aggregate settlements. This paper explores the use of the All Writs Act to provide MDL judges with robust authority to manage, supervise, and ultimately review non-class aggregate deals that are the object of much recent criticism. It rejects the thesis that judicial supervision of non-class settlements is unwarranted because these deals are contractual, and that oversight therefore removes claimant autonomy and damages the adversarial system. Several MDL judges already have invoked the All Writs Act to police parallel class action settlements that might jeopardize pending MDL negotiations. This paper explores and endorses the argument that MDL judges may, with equal force, exercise power pursuant to the All Writs Act to police pending non-class settlements in their jurisdiction.
As the MDL non-class settlement paradigm has evolved, some MDL judges have sought to intervene in settlement activities by invoking authority pursuant to three theories: (1) the quasi-class action, (2) the inherent powers of the court, and (3) the All Writs Act. As critics note, the quasi-class action and inherent judicial power have provided weak support for judicial intervention in non-class aggregate settlements. But to date, commentators have paid scant attention to judicial power under the All Writs Act or its use in MDL proceedings.
Tuesday, November 13, 2018
We covered earlier last month’s conference on the 50th anniversary of the Multidistrict Litigation statute. NYU Law School’s Center on Civil Justice has now posted video of the conference panels, available here.
Monday, October 8, 2018
This week, NYU School of Law’s Center on Civil Justice is hosting MDL at 50 - The 50th Anniversary of Multidistrict Litigation. The conference is being held at NYU (Vanderbilt Hall, 40 Washington Square South, NYC) on Friday, October 12 and Saturday, October 13.
You can find the full schedule here.
The conference is free to attend. RSVP here.
Hope to see folks there!
Friday, April 13, 2018
Andrew Bradt and Zach Clopton have published their essay, MDL v. Trump: The Puzzle of Public Law in Multidistrict Litigation, 112 Nw. U. L. Rev. 905 (2018). Here’s the abstract:
Litigation against the Trump Administration has proliferated rapidly since the inauguration. As cases challenging executive actions, such as the “travel ban,” multiply in federal courts around the country, an important procedural question has so far not been considered—Should these sets of cases be consolidated in a single court under the Multidistrict Litigation Act? Multidistrict litigation, or MDL, has become one of the most prominent parts of federal litigation and offers substantial benefits by coordinating litigation pending in geographically dispersed federal courts. Arguably, those benefits would also accrue if “public law” cases were given MDL treatment. There also are some underappreciated strategic reasons why both plaintiffs and the government might want to invoke the MDL process in these cases—and we suspect that, sooner rather than later, one of these parties might give MDL a try.
In this Essay, we argue that although the MDL statute would allow for consolidation of these public law cases, there are prudential reasons why the judges in charge of MDL should stay their hands. In our view, these cases rarely achieve the efficiencies of most MDLs, and there is value to these cases undergoing scrutiny in multiple trial and appellate courts before they percolate upward to Supreme Court review. Moreover, consolidation of these cases would raise the political profile of the MDL process and thus might politicize the MDL itself as well as the selection of its judges. This politicization could undermine MDL’s primary role in mass tort litigation—and, indeed, it risks harming the national tort system more generally.
Thursday, March 22, 2018
Abbe Gluck, Ashley Hall, and Gregory Curfman have posted on SSRN a draft of their article, Civil Litigation and the Opioid Epidemic: The Role of Courts in a National Health Crisis, which will be published in the Journal of Law, Medicine & Ethics. Here’s the abstract:
The devastating impact of the national opioid epidemic has given rise to hundreds of lawsuits. The plaintiffs -- who range from states, to counties, to Indian tribes, and individuals -- have cast an exceedingly broad net for defendants. They have sued not only the opioid manufacturers and the doctors who prescribed the drugs, but also the companies that distribute them, the pharmacies that sell them, and even the hospital accreditation organization that encouraged doctors to stop undertreating pain -- which they were -- two decades ago.
This is not the first major national public health litigation effort -- tobacco, fast food, and guns offer earlier blueprints -- but it has some unique features. First, unlike the litigation it most resembles -- tobacco -- the opioid narrative has a far more complicated chain of causation. Opioids, unlike tobacco, have an important therapeutic purpose; they are FDA approved as safe and effective; they are often prescribed by doctors for sound medical reasons; and then they wind their way from manufacturer, to distributor, to pharmacy, to patient. This complicates litigation because defendants can argue that intervening factors (including other defendants) make any single defendant's culpability hard to isolate.
Second, more than 400 of the opioid cases have now been consolidated before a single federal judge in a so-called "multidistrict litigation." That judge has chided the federal and state governments for punting the problem to the courts; he has made clear he thinks everyone is to blame; and has vowed to get a settlement, with systemic change as part of it, by the end of 2018 -- a breathtaking pace for resolution that makes his courtroom the game changer.
None of this is to say that litigation is the ideal way to solve a public health problem. Concerns abound about attorneys fees', conflicts of interests, inadequate settlement and the possible overreach of the presiding judge. But litigation has already spurred change in both the industry and the practice of medicine. It has played a central role in the public response to the epidemic. This article details that story.
Wednesday, April 12, 2017
Teddy Rave has posted on SSRN his article, Closure Provisions in MDL Settlements, 85 Fordham L. Rev. 2175 (2017). Here’s the abstract:
Closure has value in mass litigation. Defendants often insist on it as a condition of settlement, and plaintiffs who can deliver it may be able to command a premium. But in multidistrict litigation (MDL), which currently makes up over one-third of the federal docket, closure depends on individual claimants deciding to participate in a global settlement. Accordingly, MDL settlement designers often include terms designed to encourage claimants to opt in to the settlement and discourage them from continuing to litigate. Some of these terms have been criticized as unduly coercive and as benefiting the negotiating parties — the defendant and the lead lawyers for the plaintiffs — at claimants’ expense. But closure strategies vary widely and operate on claimants in complex ways. This Article examines closure provisions in recent publicly available MDL settlements. It creates a taxonomy of closure strategies, exploring how they work to ensure claimant participation and how they affect claimant choice and welfare. And it closes with a call for MDL judges to take a more active role in supervising and evaluating the terms of global settlements in MDLs.
Friday, March 17, 2017
Adam Zimmerman has posted on SSRN a draft of his article, The Bellwether Settlement, which will appear in the Fordham Law Review. Here’s the abstract:
This Article examines the use of "bellwether settlements" in mass litigation. Bellwether settlements are different from “bellwether trials,” a practice where parties choose a representative sample of cases for trial to determine how to resolve a much larger number of similar cases. In bellwether settlements, the parties instead rely on a representative sample of mediations overseen by judges and court-appointed mediators.
The hope behind bellwether settlements is that different settlement outcomes, not trials, will offer the parties crucial building blocks to forge a comprehensive global resolution. In so doing, the process attempts to (1) yield important information about claims, remedies, and strategies that parties often would not share in preparation for a high-stakes trial; (2) avoid outlier or clustering verdicts that threaten a global resolution for all the claims; and (3) build trust among counsel in ways that do not usually occur until much later in the litigation process.
The embrace of such bellwether settlements raises new questions about the roles of the judge and jury in mass litigation.What do bellwether settlements even mean when the procedures and outcomes lack any connection with a jury trial? What function do courts serve when large cases push judges outside their traditional roles as adjudicators of adverse claims, supervisors of controlled fact-finding, and interpreters of law?
This Article argues that, as in other areas of aggregate litigation, courts can play a vital “information-forcing” role in bellwether settlement practice. Even in a system dominated by settlement, judges can help parties set ground rules, open lines of communication, and, in the process, make more reasoned trade-offs. In so doing, courts protect the procedural, substantive, and rule-of-law values that aggregate settlements may threaten.