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Mass Tort Litigation Blog
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Judging Multidistrict Litigation

By Elizabeth Chamblee Burch

I posted a new article to SSRN this morning that’s been a labor of love for over a year now.  I’m excited about this piece for a few reasons.  

First, it debuts an original data set of all lead lawyers appointed in 72 product liablity and sales practices MDLs that were pending as of May 14, 2013.  As such, it’s the only paper (that I know of) that includes empirical evidence on plaintiffs’-side repeat players appointed to leadership positions.  (Yes, it includes a list of entrenched repeat lawyers and law firms, and names names.)  It also explains why appointing a group comprised of predominately repeat players to represent plaintiffs can cause inadequate representation problems.  For example, repeat players playing the long game have rational, economic incentives to curry favor with one another, protect their reputations, and develop reciprocal relationships to form funding coalitions and receive client referals.  As such, extra-legal, interpersonal, and business concerns may govern their interactions and trump their agency obligations to uniquely situated clients who could bust the deal.  Non-conforming lawyers may be ostracized and informally sanctions, which promotes cooperation, but deters dissent and vigorous representation.  Over time, expressing contrary opinions could brand the dissenter a defector, which could decrease lucrative leadership opporunities.  (Other reasons abound, which are explained on pages 25-27.) 

Second, it provides some much needed guidance for transferee judges.  Although Manual for Complex Litigation remains the go-to guide for transferee judges, it hasn’t been updated in over 10 years.  So much has changed since the fourth edition was published in 2004.  Accordingly, “Judging Multidistrict Litigation,” suggests best practices for appointing lead lawyers, compensating them, and even provides a private-law basis for reviewing settlements.

As anyone familar with the area knows, settlement review in nonclass litigaiton is controversial at best.  After judges expressly deny class certification they then harken back to Rule 23 and their “inherent equitable authority” to comment on settlements.