Monday, November 13, 2023
Linda Mullenix has posted two pieces to SSRN. First, Reflections on the Flying Buttresses of Class Action Settlement. The abstract provides:
Since the advent of the modern class action rule in 1996, class actions have long settled. Yet for more than five decades, class action settlements remained a backwater of class action jurisprudence. This changed in the 1990s, when issues relating to settlement classes dominated the federal legal landscape. The Supreme Court effectively resolved the controversy over settlement classes in its landmark decisions in Amchem Prods. Inc. v. Winsor and Ortiz v. Fibreboard Prods. at the end of the twentieth century.
The Court’s imprimatur on settlement classes opened an era of expansive use of settlement classes, which was accompanied by proliferating problems relating to the substantive and procedural fairness of settlement agreements. These problems garnered the attention of the practicing bar, the federal judiciary, and the rulemakers. In 2003 and 2018, the Advisory Committee on Civil Rules enacted sweeping changes to Rule 23(e) governing judicial approval of class action settlements.
This article argues that the twenty-first century amendments to Rule 23(e) encouraged the creation of an entire cottage industry of external expert witness support to shore up the settling parties’ burden of proof at Rule 23(e) fairness hearings. Although parties employed various such expert sin the 1990s, the rule amendments accelerated the routine use of these experts in the twenty-first century, as well as judicial acceptance and embrace of this testimony.
The article canvasses six types of party-retained expert testimony in support of class certification and settlement approval: (1) the notice vendor, (2) the fee expert, (3) the class certification expert, (4) the settlement fairness expert, (5) the ethics expert, and (6) the neutral mediator. The article focuses on the peculiar development of recourse to mediators in support of final settlement approval.
The article evaluates the value added and benefits to the judicial system of the deployment of these external experts, contrasted with the problems endemic to their use. The article concludes with thoughts on addressing the challenges presented by external expert testimony with recommendations for improvements to the status quo of routine judicial deference to party-retained external support.
Without doubt the U.S. Supreme Court in the twenty-first century has been obsessed with the problem of corporate attorneys’ inclusion of class action waivers in arbitration agreements. This article traces the emergence of the class action waiver issue, which developed in tandem with the plaintiffs’ embrace and proliferation of class action litigation at the end of the twentieth century. The discussion comments on plaintiffs’ initial attempts to request and secure class arbitration where the arbitration clauses were silent, culminating in Supreme Court’s opinion permitting arbitrators to determine this issue. With the Court’s opening the door to possible classwide arbitration, corporate lawyers regrouped to rethink the wording of their mandatory arbitration agreements, to specifically prohibit classwide arbitration. These corporate efforts and the successive redrafting of arbitration agreements prompted a series of class action waiver appeals to the Supreme Court, with the Court construing ever changing class action waiver formulations. Since 2010, the Court has decided eight class action appeals dealing with issues relating to class action waivers in arbitration agreements. The article analyzes the Court’s series of decisions relating to class action waiver provisions, focusing on the Court’s consistent repudiation of classwide arbitration as antithetical to the original concept of bilateral arbitration. The article observes that despite the Court’s clear rejection of almost all class action waiver provisions, plaintiffs’ attorneys regroup and repeatedly seek classwide arbitration by state legislative initiatives and construing arbitration agreements within the contours of the Court’s evolving class waiver jurisprudence. The article concludes with observations about class arbitration in other countries, and the implications of class action waivers for European Union countries that have recently implemented class action and collective redress procedures.
Wednesday, August 30, 2023
3M has agreed to pay approximately $6 billion to settle lawsuits brought by servicemembers who used earplugs supplied by the company. Plaintiffs alleged the earplugs were defective and they suffered hearing damage as a result. The cases were consolidated as an MDL in Florida, and plaintiffs have won 10 of the 16 trials so far. 3M reached the agreement after failing to have the cases moved to bankruptcy court earlier this year.
There are approximately 240,000 people expected to be eligible for the settlement; 98% of them must agree to accept the settlement or 3M will not be bound by it. Payments will be made from 2023 through 2029, and $1 billion will be in the form of 3M stock. 3M shares have gone up after the settlement was announced; some analysts had estimated 3M's potential liability at $10 billion. Brendan Pierson at Reuters has the story.
Yesterday Judge M. Casey Rogers ordered plaintiffs' lawyers to disclose outside funding deals, indicating concern about third-party litigation funding. Emily Siegel at Bloomberg has the story.
Monday, August 21, 2023
At Barron's, Josh Nathan-Kazis has an article about the MDL in the Southern District of New York of cases alleging that Tylenol taken by pregnant mothers causes ASD and ADHD in their children. Plaintiffs in these cases face a number of high hurdles such as causation and preemption. The cases have survived several preliminary motions and are approaching a Daubert hearing. I was surprised by the number of studies finding an association between the drug and the conditions, but of course that does not mean causation exists. Kenvue, the defendant, was spun off from Johnson & Johnson, and a stock swap has just concluded. Liability for another mass tort, the talc litigation, stayed with J&J in an attempt to make Kenvue stock more appealing to investors. The article (behind a paywall) is here.
Friday, June 16, 2023
David Noll & Adam Zimmerman have posted to SSRN Diversity and Complexity in MDL Leadership: A Status Report from Case Management Orders. The abstract provides:
In multidistrict litigation, as elsewhere, personnel is policy. As MDL has become a major site for aggregate litigation, commentators have raised concerns that large-scale products liability cases are unduly influenced by a small cadre of elite lawyers whom courts repeatedly appointed to serve in the most powerful MDL leadership roles. Repeated appointments of these "repeat players," commentators worry, facilitate self-dealing, suppress dissent, and aggravate conflicts of interest seen in other areas of aggregate litigation. These concerns about MDL overlap with broader concerns across the bench and bar about the degree to which white people and men dominate important leadership posts, to the exclusion of younger attorneys, women, LGBTQ+ people, and attorneys of color.
In response to these concerns, prominent authorities urged MDL courts to adopt a number of reforms. They recommended that judges appoint leaders through open, competitive processes; create additional leadership posts and committees; and appoint leaders for limited terms in order to create more opportunities for new attorneys to participate in leadership. But, outside of a handful of highly publicized cases, we have little empirical evidence of whether MDL leadership appointments changed in the ways that reformers proposed. This Article—part of a larger, ongoing study of the nature and functions of MDL leaders and the MDL model of aggregate litigation—begins to fill that gap. Drawing on a dataset of thousands of filings and orders that were entered in sixty-eight products liability MDLs pending in June 2019, we report data on the size, composition, and appointment process for MDL leadership slates, and changes in the makeup of leadership slates in the eighteen-year period our dataset covers.
Our data tentatively suggest that reformers' calls for larger, complex leadership slates and frequent competitive leadership appointment processes went unheeded. Examining trends in the size and structure of MDL leadership slates in products liability MDLs, we find little evidence that courts implemented the structural changes that the reformers suggested. Yet, while leadership appointment practices and the complexity of MDL leadership slates do not appear to have changed during the period we studied, we find intriguing changes in who is being appointed to leadership posts. Slightly less than a quarter of leadership appointments in our data went to female attorneys, suggestive of only a trivial increase in women's representation on leadership slates compared to earlier studies. But the majority of leadership appointments also did not go to super-elite repeat player attorneys. And, comparing our findings with earlier work that examined MDLs pending in 2013, we find substantial movement in the attorneys and firms whom MDL courts appointed most frequently to leadership posts.
These findings complicate received wisdom about MDL leadership posts. While we document considerable continuity in who is being appointed to MDL leadership posts and how, our data are suggestive of a deep bench of potential future MDL leaders for judges to choose from, as well as the opportunity for even further change in the future.
Monday, May 29, 2023
A year ago, the Deborah L. Rhode Center on the Legal Profession at Stanford convened a conference on MDLs. Nora Freeman Engstrom, Todd Venook, David Freeman Engstrom, and Silvie Saltzman have now published a report on the conference. The key point was that the attorney-client relationship in MDLs merits close inspection. Conference participants differed on the nature and extent of the underlying challenges.
Tuesday, April 25, 2023
Elizabeth Chamblee Burch has posted to SSRN MDL for the People. The abstract provides:
By the terms of its own statute and the limits of its constitutional authority, multidistrict litigation (“MDL”) is designed to transfer and coordinate individual lawsuits then return plaintiffs back to their chosen fora for case- specific discovery and trial. Because each plaintiff is present and has her own lawyer, there is no need for the judge to police conflicts of interest or attorney loyalty as in the MDL’s kin, the class action.
But these assumptions do not match the empirical reality. Remand is rare. MDL judges resolve ninety-nine percent of the cases before them. And to some attorneys, the people of MDL are just numbers on a spreadsheet, not clients with their own agency. In conducting this first-ever study of MDL plaintiffs, we explore their experience. By moving their cases far from home, courts and attorneys seem to say “trust us.” But knowledge is essential to trust, and study participants knew little about the status of their case, their judge, or even the identity of their attorney.
Three things were clear to participants. First, they were aware of how little they recovered. Second, from their perspective, justice had not been done. Only 1.8 percent felt their lawsuit accomplished what they hoped it would. And finally, participants wanted to be informed and involved.
To salvage MDLs, courts must empower plaintiffs through technology and transparency. Technology can open access to courts, bring plaintiffs into the process, and give them a voice without sacrificing MDL’s efficiencies. Creating online forums can cut through the layers of lawyers and allow plaintiffs to communicate directly with lead attorneys and each other. Armed with information and opportunity, plaintiffs can also hold attorneys accountable by evaluating them. Placing leadership performance reviews on court dockets and using them as a factor in awarding leaders’ common-benefit fees can give them weight while bringing organizational theory to bear on future leadership selections. Finally, disciplining and sanctioning individual lawyers for unethical conduct can disrupt neglect and improve the public’s faith in the system.
Monday, February 13, 2023
Nora Freeman Engstrom & Todd Venook have posted to SSRN Common Benefit Fees to Promote MDL Integrity. The abstract provides:
Multidistrict litigation (MDL) has long been dogged by worries about illegitimate—or even fraudulent—claims. These claims, and public concern about them, damage the system; they erode confidence in judicial processes, increase costs, and contribute to rising caseloads. But, while many have noted the problem, and some have even sought to address it, so far, judges’ arsenals have been limited. Some judicial efforts (such as Lone Pine orders) amount to overkill: The entry of a Lone Pine order threatens to chill the vindication of important rights, not merely the initiation of bogus claims. Other efforts, such as plaintiff fact sheets and census orders, suffer from the opposite problem: Because they lack teeth, these orders can encourage a game of judicial whack-a-mole, as some nonmeritorious claims may be rooted out even as more such claims are ushered in.
Against that backdrop, we offer an innovative and practical solution to address this problem head-on. In particular, we explain how MDL transferee judges can harness common benefit fees to induce plaintiffs’ lawyers to improve their screening practices, encouraging lawyers to cull invalid claims before they are filed. By assessing common benefit fees on a sliding scale, judges can financially reward those lawyers who meaningfully vet would-be clients—and penalize those who don’t. Over time, through tailored and targeted efforts, judges can ensure that attorneys are properly incentivized to review the factual basis of suits while also keeping courts open to claims of uncertain-but-possible merit.
Monday, September 12, 2022
Linda Mullenix has posted to SSRN Aggregationists at the Barricades: Assessing the Impact of the Principles of the Law of Aggregate Litigation. The abstract provides:
In 2004 the American Law Institute began work on THE PRINCIPLES OF THE LAW OF AGGREGATE LITIGATION, finally published in 2010. The Principles was addressed to legislatures, administrative agencies, attorneys, private actors, and courts concerning multiparty, multiforum litigation. A purpose of the Principles was to suggest best practices for these institutions and actors.
This essay describes the Principles in the historical context when complex litigation began to dominate federal dockets in the 1980s. It discusses the emergence of a cohort of aggregationists dedicated to liberalizing federal procedure to support, enhance, and encourage the speedy and efficient resolution of complex litigation. The Principles built upon a longstanding ALI concern with the burgeoning and rapidly changing judicial crisis relating to the resolution of complex litigation. The Principles suggested substantial changes in existing class action jurisprudence and judicial case management, recommending more robust embrace of liberalized aggregative procedures. Initially, the Reporters advocated for a root-and-branch revision but, as the essay documents, the final Principles reflected more modest compromises. The essay thoroughly canvasses the proposed recommendations and the subsequent embrace of the proposals.
This essay concludes that while the Principles project has left its mark, courts and legislative bodies still have not addressed or resolved many issues the Principles identified. Since publication most judges seem comfortable with prevailing jurisprudence and not especially interested in rewriting procedural doctrine governing complex litigation. The Principles has not resulted in a root-and-branch revision of aggregate procedure. Rather, reception of the Principles suggests that a more incremental approach to legal reform has prevailed, and the efforts of the avid aggregationists must await another day.
Apart from questions whether the Principles fulfilled its stated purpose, this essay explores fundamental questions about the Institute’s role in moving the law in certain directions based on the goals of committed actors. On one interpretation, the Principles represented a well-intended effort to provide judges with guidance “where there was little established law.” On another, perhaps more problematic view, the Principles represented the desires of actors who, frustrated by judicial resistance to aggregate litigation, used ALI auspices to change the law in a desired direction. These questions go to the heart of the ALI’s role in guiding attorneys, judges, and rulemaking bodies in furtherance of civil justice. Whether the liberalization of aggregate procedure is a desirable goal is a normative question that the ALI Principles project assumed but did not address.
Thursday, April 28, 2022
Linda Mullenix has posted to SSRN The Short Unhappy Life of the Negotiation Class. The abstract provides:
On September 11, 2019, Judge Dan Aaron Polster of the United States District Court for the Northern District of Ohio, Eastern Division approved a novel negotiation class certification in the massive Opiate MDL. Merely one year later September 24, 2020, the Sixth Circuit reversed Judge Polster’s certification order. While the Opiate MDL has garnered substantial media and academic attention, less consideration has been directed to analyzing the significance of the negotiation class model and the appellate repudiation of this innovative procedural mechanism.
This Article focuses on the development and fate of the negotiation class and considers the lessons to be gleaned from its attempted use in the Opiate MDL. The short unhappy life of the negotiation class raises questions whether its failure was a consequence of implementation or design. This is an important question because if the failure was the result of problematic implementation in the context of idiosyncratic circumstances, then the negotiation class model may live to see another day. On the other hand, if the failure was the consequence of deficient design and judicial overreaching, then the negotiation class may be consigned to the museum of good intentions gone awry.
The novel proposal for a negotiation class did not come out of nowhere but was another chapter in a five-decade struggle between aggregationist attorneys and judges seeking creative solutions to mass litigation, pitted against jurists repudiating adventurous use of the class action rule. This Article provides the definitive narration of the historical evolution of expanding novel uses of Rule 23, anchored in the mass tort litigation crisis that emerged on federal court dockets in the late 1970s. The article illustrates how Judge Polster’s negotiation class was the logical culmination of decades of judicial and academic experimentation with innovative procedural means to accomplish the fair and expeditious resolution of aggregate litigation. It traces the role of the American Law Institute in advancing pro-aggregation initiatives, laying the groundwork for the Opiate negotiation class proposal. The discussion elucidates how the debate over the settlement class concept in the 1990s presaged the same debate over the negotiation class three decades later, and how criticisms of the ALI aggregate litigation proposals resurfaced in opposition to the Opiate negotiation class.
The negotiation class model promised to ameliorate numerous problems inherent in heterogenous group litigation by infusing class litigation with collective action theories and democratic participatory features. The centerpiece of the negotiation class was to bring class claimants to the table and provide them with meaningful voice through group design of a settlement allocation metric, coupled with a franchise vote to approve or disapprove any offered settlement. Its other defining feature was to provide defendants at early juncture in proceedings with an accurate assessment of the class size as an incentive to enable defendants to secure global peace.
The attempted implementation of the negotiation class in the Opiate litigation revealed numerous fault lines in the proposal. The negotiation class as applied failed to provide many claimants with comprehensible information regarding the devised allocation formula. Some claimants believed that it failed to ameliorate the kinds of intraclass conflicts it was designed to remedy. State attorney generals raised the specter of interference with state prerogatives. Furthermore, rather than empowering class members at the negotiation table, the development of the Opiate litigation defaulted to a traditional model of attorney empowerment and dominance in the resolution of aggregate proceedings. The promise of collective action and democratization proved illusory.
The deployment of the negotiation class concept in the Opiate MDL also entailed problematic questions concerning the role of judicial surrogates in aggregate litigation and the increasing power and influence that courts delegate to non-party actors. Judge Polster’s embrace of the negotiation class in the Opiate litigation placed the judge, his court-appointed surrogates, and the array of plaintiff and defense attorneys in tension with the Supreme Court admonition to federal judges, at the end of the twentieth century, to cease adventurous use of the class action rule.
It may well be that the Opiate MDL was a poor vehicle to test the negotiation class proposal and so the problem was one of implementation, rather than design. The failure of the Opiate negotiation class leaves open the question whether those who crafted it could have done a better job to avoid appellate reversal. Nonetheless, if the array of special masters, expert academic professors, a seasoned senior judge, and highly experienced complex litigation attorneys were unable to successfully shepherd the first negotiation class, this experience raises doubts about its prospects. It should be remembered that the settlement class of the 1990s was a novel procedure in its day, yet it subsequently became a stock device in the class action toolbox. The history of the settlement class may foreshadow better days for the negotiation class or inspire further rulemaking by the federal judiciary to legitimate the negotiation class model.
Wednesday, June 5, 2019
Citing media coverage, Ethicon, a subsidiary of Johnson & Johnson, filed a motion to move consolidated pelvic mesh cases outside of Philadelphia and the five counties surrounding it. In the past few months, several large verdicts have been returned against Ethicon in Philly. Court of Common Pleas Judge Arnold New denied the motion in a one-page order that did not provide reasoning. The Legal Intelligencer has the story.
Tuesday, August 15, 2017
The report is here: Download DC-_641863-v1-LCJ_Request_for_Rulemaking_Concerning_MDL_cases_2017
According to Rule 1, the FRCP ‘govern the procedure in all civil actions and proceedings in the United States district courts.’ It is widely known, however, that the FRCP do not govern key elements of procedure in many MDL cases, which now constitute 45 percent of the federal docket. The reason is straightforward: the FRCP no longer provide practical presumptive procedures in MDL cases, so judges and parties are improvising. A solution is needed, and LCJ is urging the Civil Rules Advisory Committee to undertake an effort to remedy this situation by bringing MDL cases back within the existing and well-proven structure of the FRCP. While some ad hoc procedures have more merit than others, they all share the same lack of transparency, uniformity and predictability. Many common practices also cause an unbalanced litigation environment by failing to provide protections inherent in the FRCP.
Monday, July 17, 2017
Citing a story at Law.com, Byron Stier at Mass Tort Profs notes that Judge Jack Weinstein of the Eastern District of New York has been on the bench for over 50 years. Among other contributions, Judge Weinstein is known for his opinions in mass tort cases.
Thursday, September 22, 2016
A suit filed in California alleges some of Ford's sunroofs are dangerous and Ford has been aware of it for nearly a decade. The suit specifically alleges that as sunroofs have expanded over larger portions of the roof of cars, they have become less safe:
At least 70 owners of Ford vehicles have reported to the National Highway Traffic and Safety Administration that at least 80 panoramic sunroofs have shattered. The complaint alleges Ford has known about this problem since at least 2008 due to complaints to the NHTSA about defective sunroofs shattering in the Ford Edge. Ford has been the subject of an ongoing investigation by the NHTSA on this issue since May 2014.
AdvantageNews.com has the story.
Monday, June 13, 2016
National and international marketing of defective, toxic or otherwise hazardous products has engendered large-scale mass tort litigations. Unified administration of mass torts in centralized venues serves numerous functional, fairness, efficiency and consistency objectives. Requisite is the forum court’s exercise of personal jurisdiction over the parties. Recently, the Supreme Court has undertaken to reformulate the constitutional parameters of general and specific jurisdiction, in opinions authored by Justice Ruth Bader Ginsburg. Those opinions, culminating in Daimler, self-consciously apply Arthur von Mehren and Donald Trautman’s scholarship set forth in their 1966 Harvard Law Review article “Jurisdiction to Adjudicate.” Neither Daimler nor Justice Ginsburg’s other jurisdictional opinions address mass torts, and Daimler is vulnerable to misinterpretation if applied in the mass tort context without reference to Jurisdiction to Adjudicate and related scholarship. Von Mehren and Trautman endorsed the turn to a functional and fairness approach responsive to the “practical necessities” of the modern litigation scene, and thereby promoted the “unified administration” of multistate actions capable of responding to “the situation as a whole.” Daimler’s theoretical underpinnings demonstrate that the ruling accommodates personal jurisdiction over multistate entities in mass tort litigations.
Wednesday, May 18, 2016
Christopher Mueller (Colorado), who has a terrific Evidence casebook, has posted to SSRN Taking Another Look at MDL Product Liability Settlements: Somebody Needs to Do it. The abstract provides:
This Article examines the forces that lead to the settlement of product liability cases gathered under the MDL statute for pretrial. The MDL procedure is ill-suited to this use, does not envision the gathering of the underlying cases as a means of finally resolving them. Motivational factors affecting judges and lawyers have produced these settlements, and the conditions out of which they arise do not give confidence that they are fair or adequate. This Article concedes that MDL settlements are likely here to stay, and argues that we need a mechanism to check such settlements for fairness and adequacy. The best way to do so is to allow collateral review of such settlements in suits brought by dissatisfied claimants.
Tuesday, January 19, 2016
Erin Sheley (Calgary) and Ted Frank (Competitive Enterprise Institute) have posted to SSRN Prospective Injunctive Relief and Class Action Settlements. The abstract provides:
Despite much controversy and criticism, the class action is alive and well. In particular, the injunctive remedy, requiring the defendant to change some aspect of its business practice, has become a common feature of class action settlements. This article explores a taxonomically distinct remedial category of injunction that has, as of yet, not generally been considered by courts and scholars as such: the prospective injunctive remedy. We demonstrate how the prospective injunctive remedy operates and argue that, in light of the special policy and legal problems it creates, courts should observe a presumption against approving settlements that contain provisions for prospective injunctive relief. In Part I we show how the parties to a class action have, in general, no incentive to benefit either absent class members or society at large and therefore require courts to police them to ensure justice. In Part II we describe the public law underpinnings of prospective injunctive relief and provide three case studies of consumer class actions that demonstrate how and why courts fail to accurately police this relief in the private law context. We compare the approved relief in these cases to the regulatory regimes they disrupt to argue that courts in this way allow class action litigation to produce bad public policy. In Part III we explore the ways in which these prospective remedies likewise produce bad law: namely, through the inappropriate creation of regulatory preemption and the potential violations of attorney-client fiduciary duty, the adequacy requirement of Rule 23(a)(4), and constitutional standing requirements. In Part IV we consider counterarguments and in Part V we conclude.
Via Stier/Mass Tort Profs
Monday, August 10, 2015
Alexandra Lahav has posted to SSRN Participation and Procedure. The abstract provides:
How much participation should a procedurally just court system offer litigants? This question has always been especially difficult to answer in complex litigation such as class actions and mass torts because these cases involve so many litigants that it would be impossible for each of them to be afforded the kind of individualized hearing that we associate with the day in court ideal. To address the problem, we need to go back to first principles and ask what purposes participation in litigation is meant to serve. Participation serves two purposes: as a predicate to litigant consent and to engage public reason. This Article, written for the Clifford Symposium honoring Judge Jack Weinstein, argues that the public reason rationale offers the best normative underpinning for participation in large-scale litigation and demonstrates how public reason can be realized through procedural innovations such as those Judge Weinstein has pioneered.
Monday, June 8, 2015
Friday, January 23, 2015
Philadelphia Court of Common Pleas Administrative Judge Kevin Dougherty has created a mass tort docket for Xarelto, a blood thinner alleged to cause uncontrollable and sometimes fatal bleeding. Approximately 75 cases will be transferred to the court's Complex Litigation Center. The Legal Intelligencer has the story.
Wednesday, August 6, 2014
In a pleading seeking a lead counsel role in the MDL, Joe Rice revealed that the City of Providence, RI intends to sue General Motors as part of the ignition-switch litigation coordinated in the Southern District of New York. From news reports, it sounds like Providence intends to bring a diminished value claim, similar to claims brought against Toyota a few years ago. (I've written about these kinds of risk-liability suits here).
National Law Journal has the story.