West Virginia Record

Saturday, December 7, 2019

As usual, the MDL club negotiates in its own behalf

Our View

By The West Virginia Record | Jun 25, 2019


It looks like the pathological oligopolists in the elite MDL club are at it again.

As University of Georgia School of Law Professor Elizabeth Burch once observed of the usual suspects participating in multidistrict litigation, “The same five lawyers are involved in practically every proceeding.”

Burch described this small group as an “oligopoly” exhibiting “systemic pathologies” that enrich plaintiffs attorneys at the expense of plaintiffs by reaching settlements that the defendants and the government could have attained without them.

Even U.S. District Judge Dan Polster conceded that the issues being adjudicated in the multidistrict litigation he’s overseeing in Cleveland against opioid manufacturers and distributors “should be handled by the legislative and executive branches, our federal government, and our state governments.”

Polster has said he supports a negotiated settlement, and that’s what the MDL club members are aiming for on a grand scale: a “negotiation class” empowered to make an opioid deal for every municipality in the country. It would be the mother of all MDLs.

The entitled attorneys have proposed to Polster that voting power be allocated largely according to population, with any proposed deal requiring approval of 75% of the class.

While conceding that the proposal is “an innovative, creative response to the needs of cities and counties to have a voice in the MDL process and to bring some degree of closure to the defendants,” Professor Burch points out that it omits significant stakeholders, such as states, Indian tribes and drug-addicted infants.

She also wonders “if some of the politics that plagued the legislative process will filter back in here given that the process itself mirrors, in some ways, a legislature.”

Pennsylvania attorney Donald Haviland thinks the proposed negotiation class “is about the lawyers, not the clients. Bigger pot of money, bigger fees.”

The question remains, however, as to whether or not this “negotiation class” will pass Constitutional muster. What’s not in question is whether or not the pathological oligopolists in the MDL club will – one way or another – make out like bandits.

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