Repeat Players, the Settlements They Design, GM, and VW

There's obviously been a lot in the news about multidistrict litigation--from Lance Cooper's allegations in GM to the recent selection of the plaintiffs' leadership slate in VW.  But what do we really know about the settlements that come out of those large MDLs?  On one hand, the answer is not much.  Many of the deals are secret because they are private.  But sometimes those private deals are nevertheless publicly available.  And when they are, we read them.  And analyze them.

The results can be a little disturbing.  Given all of the hubbub over Cooper's allegations in GM (see Lahav's post), my co-author Margaret Williams and I decided to go ahead and release the findings of our recent study, Repeat Players in Multidistrict Litigation: The Social Network, on SSRN.  

While past studies have considered repeat play on the plaintiffs’ side, this study is the first comprehensive empirical investigation of repeat play on both sides. It won't surprise most readers to learn that we found robust evidence of repeat play among both plaintiff and defense attorneys.  What may be more interesting is that we used social-network analysis to demonstrate  that a cohesive multidistrict-litigation leadership network exists, which connects people, law firms, and the proceedings themselves.

While repeat play may not be surprising for those in the know, the fact that repeat players exist matters considerably. Lead lawyers control the litigation, dominate negotiations, and design settlements.

To consider repeat players’ influence, we examined the publicly available nonclass settlements these attorneys negotiated, looking for provisions that one might argue principally benefit the attorneys, and not one-shot plaintiffs. By conditioning the deal on achieving a certain claimant-participation rate and shifting the deal-making entities from plaintiffs and defendants to lead lawyers and defendants, repeat players tied all plaintiffs’ attorneys’ financial interests to defendants’ ability to achieve closure.

Over a 22-year span, we were unable to find any publicly available nonclass settlement that didn’t feature at least one closure provision (which benefits the defendant), and likewise found that nearly all settlements contained some provision that increased lead lawyers’ fees. Based on the limited settlements available to us, we found reason to be concerned that when repeat players influence the practices and norms that govern multidistrict proceedings—when they “play for rules,” so to speak—the practices they develop may principally benefit them at the expense of one-shot plaintiffs.

Of course, our research doesn't speak directly to the allegations in GM, but it does make those allegations far less surprising.  And if you compare our list of repeat players to the names of those appointed in Volkswagen, you'll see a lot of familiar names.