Kacie D. Hillsman – The world of class actions is changing. Recent, and pending, rulings by the Supreme Court leave attorneys nationwide grappling with case management. Specifically, it has become increasingly difficult to overcome the tactically inflexible class action rules if mass tort and multi-district litigation are embedded with class action narrative. Regarding complex litigation, the Rules Enabling Act, 10th Amendment, and 14th Amendment are all a bit… Erie.
Class Action Litigation is a lawsuit in which a group of people with substantially similar claims, caused by the same product or action, sue a defendant as a group. It is a mechanism to reduce the aggregate social costs of litigation, thereby promoting access to justice. To obtain certification for a class action, plaintiffs bear the burden of proving that Rule 23(a) requirements have been met. Mass Tort Litigation and Multi District Litigation (“MDL”) cases are a different form of multi-party proceeding. Where class actions have all parties in one lawsuit, MDL cases remain separate.
First, Congress enacted The Multidistrict Litigation Act in 1968. This Act created The Judicial Panel on Multi-District Litigation (“MDL Panel”). Herein, seven federal district court judges, appointed by the chief justice, decide whether to consolidate cases filed in multiple district courts into a single federal district court. The panel considers whether there are one or more common questions of fact; whether the transfer is for the convenience of all of the parties involved; and whether the transfer will promote judicial efficiency, economy, and fairness. Personal jurisdiction and 28 U.S.C §1404 venue requirements are not considered. Thus, the standards are less stringent than Rule 23(a).
Next, Congress created The Class Action Fairness Act (“CAFA”) in 2005. Seemingly, CAFA effectively facilitates consolidation of state-court class actions into federal MDL, citing national significance and duplicative litigation in state and federal court. Truthfully, it was enacted to prevent state judges from enabling plaintiffs to settle claims against their deep-pocketed friends. By removing the claims to federal court, lawyers would be unable to bring a class action in a state court that met their choice of law. Because class actions were generally disfavoured by Congress and Federal Justices, they believed that many class actions would not survive certification.
Now, MDL accounts for over 15% of all civil litigation in the U.S. and the MDL Panel is fighting back. In the recent case of In re: National Prescription Opiate Litigation (MDL 2804), plaintiffs alleged that the manufacturers of prescription opioids grossly misrepresented the risks of long-term use of those drugs for persons with chronic pain, and distributors failed to properly monitor suspicious orders of those prescription drugs—all of which contributed to the current opioid epidemic. The court decided to consider if the Rule 23(a) requirements were met out of an abundance of caution, after first siding with CAFA by refusing certification for lack of a definable, identifiable class.
The Complaint skillfully asserts that Rule 23 requirements are satisfied. This includes numerosity, commonality, typicality, adequate representation, and predominance. First, numerosity is undeniably fulfilled. There are over 1,100 cases, filed by hundreds of attorneys, pending in this MDL. This includes a combination of government entities, Indian tribes, hospitals, third-party payors and individuals in nearly every state who have sued the manufacturers, distributors and retailers of prescription opiate drugs. They allege they are liable for the costs its’ class has incurred, and will continue to incur, in addressing the opioid public health crisis.
These cases raise a common fact questions as to the allegedly improper marketing and widespread diversion of prescription opiates into various states, counties and cities across the nation. Commonality, therefore, is fulfilled because persons prescribed to opioids have increasingly died as a result of overdose since its’ entry to the market.
The Panel selected the Northern District of Ohio to represent the claims of the class members. Typicality is fulfilled because Ohio experienced a “significant rise in the number of opioid-related overdoses” in recent years and is near the headquarters of various defendants. Speculation into the individual issues that may arise in each action and the 115 potentially related actions is moot. The transferee court can address these by creating different tracks for particular parties or claims.
As alleged in the Complaint, the plaintiffs will fairly and adequately represent and protect the interests of the class members because they have no interest adverse to the interests of the class. The class is represented by law firms that are being funded by third-party litigation financers. Ironically, the man funding this litigation recently died of an accidental opioid overdose.
Lastly, predominance is met because a common objective outweighs the individual interest in “parens patriae.” For example, each city, county, and state in the action has a unique interest in protecting its’ residents from public harm.
Even if the court fails to find that every Rule 23 requirement is met, the opioid companies are likely to settle to avoid reputational damage. For example, in a variety of factually similar cases pre-dating this action, the Court upheld both injunctive and monetary judgments and/or settlements, regardless of Rule 23 sufficiency. Accordingly, CAFA is unable to win this long fought battle to protect the opioid companies; MDL standards will be imposed. David will, once again, beat Goliath.
Now, the question remains: what is an addiction epidemic worth?
