The Short Unhappy Life of the Negotiation Class

Linda S. Mullenix August, 2023

Linda S. Mullenix*

* Morris and Rita Chair in Advocacy, University of Texas School of Law. The author was retained as a consulting attorney by counsel for Certain Opt-Out Entities Within the State of Texas in the Opiate MDL.

Abstract

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 multidistrict litigation (MDL). Merely one year later on 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 attorneys general 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 of 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.

As the stewards of rules which the Judicial Branch brings into existence, federal courts must construe Rule 23 in ways that avoid constitutional objection. . . . the Rules Enabling Act and the general doctrine of constitutional avoidance provide further counsel against adventurous application of Rule 23.¹
Neither do men put new wine into old bottles: else the bottles break, and the wine runneth out, and the bottles perish: but they put new wine into new bottles, and both are preserved.²

Introduction

When scholars ultimately write the definitive account of the sprawling national Opiate litigation, it no doubt will be assessed as either the apotheosis or the nadir of MDL litigation generally. But that is an epic story for another day. In the interim, one special Opiate litigation subplot — the saga of the ill-fated negotiation class — deserves scrutiny for the lessons it teaches about the boundaries and limitations of judicial authority. Ultimately, the chronical of the Opiate negotiation class raises legitimate questions about the role of democratic process in the resolution of complex litigation through MDL or class action auspices. It also raises questions of the limits of judicial authority to infuse legal proceedings with quasi-democratic procedures.

Nurtured in the groves of academe, endorsed by the American Law Institute, and birthed in full measure in the Opiate MDL, Judge Dan Aaron Polster gave the negotiation class official judicial imprimatur in September 2019.³ One year later, the Sixth Circuit Court of Appeals resoundingly repudiated the negotiation class Judge Polster had certified.⁴ Since the appellate repudiation of the negotiation class, no other federal court has taken up the invitation to innovate in the class action arena by endorsing another negotiation class.

This article traces the development of the negotiation class in the context of evolving adventurous expansions of class action litigation since the late 1970s. Part I sets forth the historical antecedents of the negotiation class that laid the groundwork for class action advocates to push the boundaries of procedural law to effectuate collective redress. This portion of the article chronicles the emergence of a cohort of aggregationist attorneys and judges in the 1980s and their efforts to reshape collective redress. It focuses on the development of the concept of the settlement class and how the settlement class experience informed the debate over the negotiation class three decades later. It illustrates how the federal courts’ attitudes toward class actions and other forms of collective redress seesawed from one decade to the next.

Part II discusses the genesis of the negotiation class concept by its authors and sponsors. This section discusses the American Law Institute’s 2010 publication of the Principles of the Law of Aggregate Litigation⁵ laying the intellectual groundwork for the negotiation class proposal in 2017. This portion of the paper illustrates how the ALI’s novel proposals for resolving non-class aggregate litigation subsequently inspired two law professors — Francis McGovern of Duke University Law School and William Rubenstein of Harvard University Law School — to propose the negotiation class model in a law review article. It analyzes how arguments and counterarguments supporting and opposing the non-class settlement proposal in the ALI Principles project anticipated the same arguments for and against the negotiation class.

Part III addresses Judge Polster’s embrace of the negotiation class in his supervision of the Opiate MDL. It briefly surveys the advent of the national opiate crisis, the initiation of litigation by public entities seeking redress for harms to public health systems, the creation of the MDL, and Judge Polster’s various unorthodox measures in his supervision of the MDL. This portion of the article discusses Judge Polster’s class certification of the negotiation class in September 2019 and the immediate appeal of that order. It canvasses the arguments of the appellants, appellees, and amici, pointing out that many of the arguments they advanced were well-worn arguments from earlier eras in the history of mass tort litigation. This section discusses the Sixth Circuit’s decision reversing the negotiation class and the majority’s rejection of this expansion of class action procedure.

Part IV examines the reaction to the Sixth Circuit’s decision, focusing on a scholarly, positive post-mortem suggesting that the failure of the negotiation class was a consequence of flawed implementation rather than design. It reflects on the strength of the bankruptcy law analog that the proponents of the negotiation class relied on as a precedent for the voting procedures in the negotiation class model. More generally, it considers the uncertain future of the negotiation class focusing on the question of whether the failure of the Opiate negotiation class was a problem of implementation or design.

Finally, this section reprises the discussion of the negotiation class in the context of the five-decade long debate concerning the best procedural means for resolving mass tort litigation, pitting theories of litigant autonomy against aggregationist views. It raises basic questions of the role of democratic process in the resolution of aggregate litigation and asks what democratic procedure in civil litigation means, and what democratic involvement requires. The article suggests that the experience of the negotiation class represents just another chapter in the long history of mass tort litigation, with this chapter concluding in favor of litigant autonomy and agreeing with the admonition to federal judges to cease adventurous uses of the class action rule that potentially violate the Rules Enabling Act.⁶ Ultimately, the central issue may not be the wisdom of the negotiation class, but whether district court judges have the authority to create novel procedures in aggregate litigation.

I. Historical Antecedents for Adventurous
Expansion of Class Litigation

A. The Era of Innovative Initiatives in Class Litigation

The modern era of American class action litigation effectively began with the 1966 amendment of Rule 23, which restructured the class action rule to create simplified and functional class action categories.⁷ At that time, the centerpiece of class action procedural reform was the creation of the Rule 23(b)(2) injunctive relief class action. This amendment ushered in a decade of institutional reform litigation with injunction as the primary form of group relief.⁸

By the end of the 1970s, federal courts began to be inundated with a new form of class litigation not contemplated by the 1960s rulemakers: namely, the mass tort class action.⁹ The seminal mass tort litigation of this era embraced aggregate litigation concerning asbestos exposure, Agent Orange syndrome illnesses, the Dalkon Shield IUD, Bendectin, and DES birth defect cases.¹⁰

The chief conundrum that challenged federal courts concerned the suitability of these proposed mass tort cases for class certification under the Rule 23(b)(3) damage class action category. With the emergence of mass tort litigation, many federal courts resisted certifying such proposed class actions because the judges concluded that Rule 23 neither embraced nor contemplated these aggregate mass tort cases.¹¹ Many courts pointed to the 1966 Advisory Committee Note as support for the conclusion that mass tort class actions were not suitable for class certification.¹²

By the mid-1980s, several federal judges with substantial mass tort dockets concluded that it was necessary to find a way to manage and adjudicate aggregate mass tort litigation.¹³ Thus began a decade of creative innovation by aggregationist federal judges applying Rule 23 to mass tort litigation. These innovations included liberal, expansive class certification orders,¹⁴ the introduction of multi-phase trials,¹⁵ the use of damage sampling techniques,¹⁶ recourse to limited issues classes,¹⁷ increased reliance on special masters in novel roles,¹⁸ and glossing over applicable law problems in multi-state or nationwide mass tort class actions.¹⁹ A cohort of aggregationist federal judges would continue to experiment with pioneering uses of the class action rule well into the mid-1990s, when judicial reaction against mass tort class litigation emerged and signaled a temporary denouement of innovative mass tort class litigation.²⁰

B. The Development of and Controversy Relating the Settlement Class

Another signal development of the innovative mass tort era of the late 1980s and early 1990s was the attorneys’ development and the judiciary’s endorsement of a new concept: the settlement class. The nationwide class settlement of asbestos claims in Georgine v. Amchem Prods., Inc.²¹ in 1994 inspired a decade-long controversy concerning the use and approval of settlement classes. The debate surrounding the legitimacy of the settlement class in the 1990s anticipated the controversy surrounding the legitimacy of the negotiation class nearly thirty years later. As will be seen, many of the contentions that supporters and opponents of the settlement class advanced during that earlier debate over settlement classes would be revisited and reargued concerning the negotiation class.²²

The Fourth Circuit anticipated the controversy over the legitimacy of settlement classes with its approval of a settlement class in the Dalkon Shield mass tort litigation.²³ The resolution of the Dalkon Shield litigation set forth the contours of the ensuing settlement class debate during the 1990s. In the Dalkon Shield litigation, after protracted proceedings, the parties agreed to a settlement that was conditioned on class certification. The district certified the class as part of the approval process and approved the settlement.²⁴

On appeal, the appellants argued that Rule 23 did not authorize or permit a judge to certify such a settlement class. The Fourth Circuit considered this then-novel question whether the “class certification for settlement purposes is permissible under Rule 23.” The court noted that the federal judge supervising the Bendectin litigation had issued the only extant decision at that time approving a settlement class in a mass tort litigation. Notwithstanding the paucity of judicial precedents, the Fourth Circuit found support for the settlement class concept in academic commentary and a few judges managing other mass tort cases.²⁵

Surveying the authority for settlement classes, the court alluded to the equitable foundations of Rule 23 and class action litigation. The court concluded that “the lessons to be gleaned from the authorities already cited and discussed to be that the ‘trend’ is once again to give Rule 23 a liberal rather than a restrictive construction, adopting a standard of flexibility in application which will in the particular case ‘best serve the ends of justice for the affected parties and promote judicial efficiency . . .’”²⁶ The court further noted the well-established use of settlement classes in other contexts and could find no reason why the concept should not be extended to mass tort cases.²⁷ And finally, the court indicated that while a settlement was not a per se reason for certifying a class, the existence of a settlement certainly was a factor that a court legitimately could take into account when considering whether to certify a class.²⁸

The controversy over the legitimacy of the settlement class sharpened with the 1994 settlement of the Georgine nationwide asbestos class action.²⁹ The procedural history of the Georgine litigation has been well-rehearsed in judicial decisions³⁰ and extensive academic commentary.³¹ After the parties reached a settlement of all existing and future asbestos claims nationwide, a Texas attorney — with his own inventory of asbestos claimants — objected to the settlement.

In addition to challenging the substantive terms of the settlement, the objector also challenged the procedural development of the Georgine deal. In particular, he argued that the settlement class was illegitimate, that the request for approval of the settlement and class certification were filed on the same day, and that the plaintiff and defense attorneys had engaged in collusion in negotiating and finalizing the agreement. After extensive testimony at the fairness hearing concerning the Georgine settlement, District Court Judge Lowell Reed approved the settlement and certified a Rule 23(b)(3) opt-out settlement class. Judge Reed’s lengthy opinion was noteworthy for its lack of attention to the settlement class issue.³² Unhappy with this result, the objector appealed to the Third Circuit.

C. The Settlement Class Triumphant

Two successive decisions by Third Circuit Judge Edward R. Becker played a significant role in the emerging settlement class controversy. These decisions laid the theoretical, jurisprudential, and practical groundwork for the ensuing debate over settlement classes that the Supreme Court ultimately would resolve at the end of the decade. The contours of the settlement class debate in the 1990s is instructive for the debate over the negotiation class that its advocates and detractors argued some thirty years later.³³ Many of the same contentions that were advanced in favor and against the negotiation class in 2019 were urged during the settlement class controversy of the 1990s.

1. The GMC Pick-Up Truck Fuel Tank Settlement Class

While the district court’s approval of the Georgine settlement was pending, Judge Becker issued an opinion concerning a settlement class of GMC pick-up truck purchasers that numerous objectors opposed.³⁴ Although the court would find fault with the settlement on substantive grounds, Judge Becker’s opinion carefully canvassed the issues enmeshed in the novel settlement class concept and ultimately endorsed the legitimacy and practicality of settlement classes.³⁵ Judge Becker’s discussion of the settlement class concept in the GMC and Georgine appeals laid the jurisprudential grounds for ultimate Supreme Court review.

The nature of a settlement class, Judge Becker explained in GMC, was a request to the court from the plaintiffs and defendants for a settlement class after the parties provisionally settled the case and before they would otherwise seek formal class certification. Using the settlement class device, parties moved for simultaneous class certification and settlement approval.³⁶ Judge Becker noted that this process was “removed from the normal, adversarial, litigation mode.”³⁷

Although the GMC objectors raised multiple issues on appeal, Judge Becker singled out the problem of the settlement class for special attention: “While all the issues we have mentioned are significant, the threshold and most important issue concerns the propriety and prerequisites of settlement classes.”³⁸ Regarding the propriety of a settlement class, Judge Becker noted that the settlement class device was not mentioned in the class action Rule 23, but neither did the rule precluded it. Instead, the settlement class device was a judicially crafted procedure. Searching for authoritative support for the settlement class, Judge Becker located this possibly in the Rule 23(d) delineation of powers afforded to judges, or alternatively, by a court’s “temporary assumption” of powers to facilitate settlement. For Judge Becker, settlement classes represented “a practical construction of the class action rule.”³⁹

Having determined the propriety of settlement classes, Judge Becker turned attention to the prerequisites for approval of a settlement class. He announced that there was no lower standard for certification of a settlement class than for a litigation class.⁴⁰ Thus, “a class is a class is a class,” and “there is no language in the rule that can be read to authorize separate, liberalized criteria for settlement classes.”⁴¹ A proposed settlement class had to satisfy two necessary fundamentals for judicial approval. First, a proposed settlement class had to satisfy all the threshold Rule 23(a) requirements of numerosity, commonality, typicality, and adequacy, as well as the additional Rule 23(b)(3) requirements for predominance and superiority if the settlement agreement was proposed under that provision.⁴² Second, a judicial finding that a settlement was fair and reasonable could not serve as a surrogate for class findings.⁴³ However, unlike the Fourth Circuit’s opinion in the Dalkon Shield settlement, Judge Becker did not resolve the issue whether, in the case of settlement classes, the fact of settlement might be considered in applying the Rule 23(b)(3) requirements.⁴⁴

Turning to policy considerations, Judge Becker acknowledged that the Federal Judicial Center’s Manual for Complex Litigation (First) strongly disapproved of settlement classes. In addition, critics challenged the use of settlement classes as a device for collusive settlements that benefitted plaintiff and defense counsel mutually, to the detriment of claimants.⁴⁵ But judicial resistance to flexible applications of Rule 23 had diminished over time.⁴⁶ Thus, with the influx of complex national and international class actions onto the federal court dockets, the FJC and several federal judges relented and endorsed the settlement class concept “under carefully controlled circumstances.”⁴⁷ The increased use of settlement classes – particularly in the mass tort context – had proven valuable in disposing of these major cases.

Like the Fourth Circuit’s allusion to the equitable foundation of Rule 23, Judge Becker invoked similar underlying rationales for the settlement class: “Courts have also relied on the more general policies of Rule 23 – promoting justice and realizing judicial efficiencies – to justify this arguable departure from the rule. The hallmark of Rule 23 is flexibility.”⁴⁸ Significantly Judge Becker’s detailed analysis of the perceived problems of settlement classes — as well as his canvass of the arguments favoring the settlement class device — would resonate in the subsequent controversy over the proposed negotiation class.

Judge Becker identified at least fourteen problematic issues relating to settlement classes: (1) Rule 23 did not authorize a separate category for class certification that would permit a dilution or dispense with the Rule 23(a) requirements, (2) Rule 23 did not authorize deferral of class certification pending settlement, (3) deferral of class certification created practical problems, (4) deferral of class certification impeded the court’s ability to protect the interests of the absentees during the disposition of the action, (5) deferral of certification impaired the court’s performance of its role as supervisor/protector of class members’ interests without the benefit of full adversarial briefing, (6) deferral of class certification impeded the judge’s ability to effectively monitor for collusion, (7) settlement classes deprived judges of the structural devices of Rule 23 and the presumptions of propriety generated by the rule, such as adequacy of representation, (8) settlement classes could be used to evade the processes intended to protect absentees’ rights, (9) settlement classes might compromise the fiduciary duties of class counsel or the class representatives, (10) early achievement of a settlement class might lead to inadequate consideration in exchange for release of the class members’ claims, (11) class members as a consequence of information deficiencies might not be in a fair position at an early stage to evaluate whether a settlement represented a superior alternative to litigation, (12) settlement classes created an opportunity for one-way intervention, (13) the possibility of pre-certification negotiation and settlement might facilitate the filing of strike suits, and (14) use of settlement classes risked transforming courts into mediation forums.⁴⁹

Judge Becker counterbalanced his discussion of the problems of settlement classes with a litany of arguments in support of the procedure. He suggested that “By using the courts to overcome some of the collective action problems particularly acute in mass tort cases, the settlement class device can make settlement feasible.”⁵⁰ Settlement classes increased the actions amenable to resolution by increasing the rewards of a negotiated settlement and they enhanced defendants’ incentive to settle because settlements bound claimants and barred further litigation. Settlement classes might reduce the probability of subsequent successful challenges and reduce litigation costs by allowing defendants to stipulate to class certification. Settlement classes might palliate claimants by equalizing payment amounts to class members. Critics had underestimated that due process safeguards still inhered in the process, because objectors could challenge certification with contentions not based solely on the settlement’s terms. Due process also was preserved because class members could opt-out from Rule 23(b)(3) settlement classes. Moreover, no matter when the certification issue arose, the judges’ duties to ensure fairness and adequacy were the same.⁵¹

2. The Georgine Settlement Class

Judge Becker gained a second opportunity to set forth his views on settlement classes in the Georgine objector’s appeal from Judge Reed’s approval of the Georgine settlement class.⁵² In essence, the Third Circuit adopted and applied Judge Becker’s prerequisites for settlement classes in its review of the Georgine settlement class, noting that the GMC panel had held that class actions might be certified for settlement purposes only.⁵³ Judge Becker spent no further time discussing the propriety of settlement classes. However, he answered the issue left open in GMC, now asserting that courts could not take the settlement into account when applying the Rule 23(b)(3) requirements.⁵⁴

Judge Becker’s opinion focused on the GMC holdings that parties had to satisfy the Rule 23(a) and Rule 23(b)(3) requirements as if the case were going to be litigated.⁵⁵ He noted that District Judge Reed did not have the benefit of the Third Circuit’s GMC decision when he approved the Georgine settlement. Consequently, the district court had applied an incorrect standard. The district court erred in its view that Rule 23 requirements for settlement classes were lower than for litigation classes. In addition, the district court erred by relying in significant part on the presence of the settlement itself to satisfy the Rule 23(a) requirements of commonality, typicality, and adequacy. Judge Becker reminded that the settlement proponents had to satisfy each of these requirements without considering the settlement.⁵⁶ In applying the Rule 23 factors, the court reversed approval of the Georgine settlement, holding that the settlement failed to satisfy the Rule 23(a) requirements for typicality and adequacy, and the Rule 23(b)(3) requirements of predominance and superiority.⁵⁷

By the Georgine appeal, the settlement class issue was percolating throughout the judiciary. Judge Becker recognized that his settlement class views might not prevail, suggesting that the Advisory Committee on Civil Rules, Congress, or the Supreme Court might weigh in with countervailing judicial or legislative initiatives.⁵⁸

3. The Supreme Court Speaks on Settlement Classes:
The Amchem and Ortiz Settlement Classes

Judge Becker recognized that the Supreme Court ultimately would resolve the settlement class issue, which may explain his ambivalence in the final paragraphs in his Georgine opinion. The Court engaged with the settlement class debate with its Amchem and Ortiz decisions.⁵⁹ By the time the settlement class issue reached the Supreme Court, Judge Becker had extensively vetted the question.

In Amchem, the Court upheld the legitimacy of settlement classes,⁶⁰ suggesting that in the decades since the 1966 amendment of Rule 23, courts had become more “adventuresome” in the means to resolve mass claims.⁶¹ The “settlement only” class had become a stock device that enhanced the “‘just, speedy, and inexpensive’” resolution of complex cases. However, although all federal courts accepted the utility of settlement classes, they were divided on the extent to which settlement classes affected judicial oversight of class certification requirements.⁶² The nub of the Court’s settlement class discussion centered less on the legitimacy issue, but more on the Rule 23 criteria for approval of a settlement class.

Regarding Rule 23 prerequisites, the Court disagreed with Judge Becker’s view that proponents had to satisfy all class certification requirements. Instead, a court did not need to evaluate the manageability of the proposed class action when asked to approve the Rule 23(b)(3) settlement, precisely because the case would never be tried.⁶³ Other criteria of Rule 23 demanded “undiluted, even heightened, attention in the settlement context.”⁶⁴

However, the Court agreed with Judge Becker that the alleged fairness of a proposed settlement could not be used to bootstrap a determination that class certification requirements were satisfied. Federal courts were not authorized to substitute for the Rule 23 criteria a standard that the Advisory Committee had never adopted: namely, that if a settlement was fair, then certification was proper.⁶⁵ Applying Rule 23 standards to the Georgine settlement approval, the Court concluded that the district court erred in finding that the Rule 23(b)(3) predominance requirement was satisfied.⁶⁶ In addition, the Court concluded that the Georgine settlement failed to satisfy the Rule 23(a) adequacy requirement because of an inherent conflict of interest among class members.⁶⁷

The Court sounded cautionary notes about the limits of judicial power in the class action arena. The Court noted that the Advisory Committee was considering a proposed amendment to Rule 23 — but had not yet acted on the proposal — that would specifically authorize settlement class certification even though the proposed settlement class did not meet the requirements for a Rule (b)(3) certification.⁶⁸ The Court also noted that Congress had not adopted a nationwide asbestos claims processing regime as an efficient means for resolving these mass tort cases, suggesting that the federal judiciary could not on an ad hoc basis adopt just such an approach and solution. In addition, the courts were required to interpret and apply Rule 23 with fidelity to the Rules Enabling Act, which prohibited federal courts from abridging, enlarging, or modifying substantive rights.⁶⁹

The Court’s 1999 Ortiz decision tacitly, but not explicitly, affirmed the propriety of settlement classes. Because the Ortiz Court must have considered that its Amchem decision definitively decided the legitimacy of settlement classes, the Ortiz decision added little to the jurisprudence of settlement classes. In reversing the Fifth Circuit’s approval of a Rule 23(b)(1) limited fund settlement class, the Court indicated that the appellate court had “[fallen] short in its attention to Amchem’s explanation of the governing legal standards.”⁷⁰ Reviewing the district court’s approval of the settlement class, the Court indicated that it had erred by focusing on the settlement terms in assessing the Rule 23(a) requirements for commonality and typicality. In addition, the district court had taken no steps at the outset to ensure that potentially conflicting interests were afforded structural due process protections.⁷¹

The Court in Ortiz again sounded cautionary notes about the trend towards adventurous uses of the class action device to resolve mass tort cases. “The Rules Enabling Act underscores the need for caution. As we said in Amchem, no reading of the Rule can ignore the Act’s mandate that ‘rules of procedure “‘shall not abridge, enlarge, or modify any substantive right.”’”⁷² The Court again pointed out the limits of judicial power regarding expansive use of the class action device: “The nub of our position is that we are bound to follow Rule 23 as we understood it upon its adoption, and that we are not free to alter it except through the process prescribed by Congress in the Rules Enabling Act.”⁷³

D. The Advisory Committee’s Rejection of the Settlement Class Proposal

In deciding Amchem, the Court was well-aware that the Advisory Committee on Civil Rules had a pending proposal to amend Rule 23 to add a specific Rule 23(b) category that authorized settlement classes, which proposal it had forwarded to the Judicial Conference’s Standing Committee on Rules of Practice and Procedure.⁷⁴ In May 1996, six months before the Court granted certiorari in Amchem, the Standing Committee received “voluminous” public comments, many of which were opposed to adding a new provision for a settlement class.⁷⁵ When the Advisory Committee, in turn, learned that the Supreme Court granted certiorari in Amchem, the Advisory Committee decided to await the Court’s decision before proceeding with the proposed settlement class amendment.⁷⁶

The proposed revision to Rule 23 would have added a new subdivision to the Rule 23(b) categories.⁷⁷ The Rule 23(b)(4) provision would have allowed courts to certify a class when “the parties to a settlement request certification under subdivision (b)(3) for purposes of settlement, even though the requirements of subdivision (b)(3) might not be met for purposes of trial.”⁷⁸ The Advisory Committee Note stated that “[a] single court may be able to manage settlement when litigation would require resort to many courts. And, perhaps most important, settlement may prove far superior to litigation in devising comprehensive solutions to large-scale problems that defy ready disposition by traditional adversary litigation.”⁷⁹ The Advisory Committee Note further indicated that the intent of the proposed new subdivision was to overrule Judge Becker’s strict approach to certifying settlement classes, and to allow for more relaxed satisfaction of the adequacy, typicality, and predominance requirements to be evaluated with reference to the settlement fairness.⁸⁰

In the aftermath of the Court’s Amchem decision, the Advisory Committee did not act on the proposed Rule 23(b)(4) settlement class proposal.⁸¹ However, as one commentator noted, some issues just don’t seem to go away.⁸² This has certainly been true for the settlement class. In 2012, the Advisory Committee created a sub-committee to consider further amendment of Rule 23,⁸³ which included possibly resuscitating a settlement class proposal to circumvent strict application of the Rule 23(a) and (b) requirements for certification of a settlement class. Taking a page from the 1966-97 debate over settlement classes, the Advisory Committee Minutes recorded the inquiry put to the subcommittee: “Should there be criteria for certifying a settlement class different from the criteria for certifying a litigation class?”⁸⁴

The controversy over amending Rule 23 to add a settlement class category foreshadowed the ensuing debate thirty years later concerning the negotiation class. By the early 1990s, an emerging cohort of aggregationist lawyers, judges, and academicians aligned as proponents of the settlement class concept. They viewed the settlement class as an efficacious device to assist in the just, speedy, and inexpensive resolution of mass tort litigation.⁸⁵ They sought to establish the legitimacy of the settlement class through the amendment of Rule 23, rather than leaving this question to judicial construction.⁸⁶ Essentially the same cohort of aggregationists would reappear in the early twenty-first century to advocate for the novel concept of the negotiation class, again sounding rationales of procedural fairness and judicial efficiency. Between 2004 and 2010, the aggregationists would propose and endorse the negotiation class concept through the auspices of the American Law Institute’s Principles of the Law of Aggregate Litigation project,⁸⁷ and by urging expansive judicial interpretation of Rule 23 in class and MDL litigation.

During the 1990s, an array of opponents aligned against the settlement class construct. These included several academics⁸⁸ as well as defense counsel and corporate interests that opposed artificially diluting Rule 23(a) threshold requirements for Rule 23(b)(3) damage class actions.⁸⁹ They contended that a textual reading of Rule 23 did not include or support the concept of a settlement class and proponents could not simply create a new category of class actions that effectively accomplished an end run around class certification requirements. They argued that the settlement class proposal would increase the possibility of collusion between defense and plaintiffs’ attorneys.⁹⁰ They further grounded their opposition by reference to the Rule Enabling Act mandate, alleging that the authorization of a separate category of settlement class action with different certification requirements would violate the Rules Enabling Act.⁹¹ Essentially these same defense and corporate interests would reappear to oppose the novel concept of the negotiation class, advancing similar arguments against both the ALI Principles proposal, as well as Judge Polster’s approval of the negotiation class in the Opiate MDL litigation.⁹²

II. The Origins and Genesis of the Negotiation Class

A. The Gathering Storm for Twenty-First Century Class Action Reform

The class action jurisprudence at the end of the twentieth century manifested a more cautious and cabined approach to both litigation and settlement classes. The Court’s Amchem decision imported criteria requiring heightened scrutiny of settlement classes, with an especial focus on adequacy, intraclass conflicts, typicality of class representatives, and satisfaction of the predominance requirement.⁹³ The Amchem standards provided defendants with amplified arguments with which to oppose class certification as well as settlement class approval; defendants deployed the Amchem standards effectively to defeat an array of proposed Rule 23(b)(3) class litigation and settlements. The Ortiz decision effectively hobbled the efficacy of limited fund class settlements, which decision set forth stringent requirements for certification and approval of Rule 23(B)(1)(b) settlement classes.⁹⁴ In addition, the Ortiz decision embraced the same principles of adequacy of representation the Court endorsed two years earlier in Amchem.⁹⁵

Moreover, the Court anchored its Amchem and Ortiz decisions in fundamental concerns about the limits of attorney advocacy and judicial authority to create novel class action procedure. The Court’s invocation of the Rules Enabling Act sounded a warning concerning the limits of judicial activism in the class action arena. ⁹⁶ A signal consequence of the dual settlement class decisions was the Court’s emerging distaste for any further adventuresome forays into inventive Rule 23 procedures.

Thus, while the Court endorsed the general concept of the settlement class, the Court created new hurdles for plaintiffs and defendants in prosecution of class litigation. The Court’s articulation of more stringent Rule 23 requirements benefitted defendants who now had doctrinal ammunition with which to oppose certification of litigation classes. The plaintiffs’ bar reacted to the post-1995 federal retrenchment of class action jurisprudence by abandoning federal forums for more favorable state courts with liberalized class procedure.⁹⁷ As events would unfold, the Amchem and Ortiz requirements would come to affect plaintiffs and defendants alike regarding settlement approval, where judges could apply those same rigorous standards to defeat judicial approval of negotiated settlements.

At the beginning of the twenty-first century, then, several events converged to spur efforts to seek reform class action procedure. Corporate and defense interests turned to Congress for legislative relief from the vagaries of state class action litigation and aligned to sponsor the Class Action Fairness Act of 2005.⁹⁸ The chief aim of CAFA was to remove class litigation from disadvantageous state courts and to allow defendants to take advantage of more favorable federal class jurisprudence.⁹⁹ CAFA created new federal diversity class action jurisdiction and provided a new removal provision for state-based class actions.¹⁰⁰

While CAFA’s enactment represented a victory for defense interests, it co-relatively had a negative impact on class plaintiffs. Plaintiffs now found themselves having to pursue their class litigation in federal forums subject to the restrictive Rule 23 jurisprudence that had spurred them to abandon federal courts after 1995. ¹⁰¹ Discontent with the strictures of Amchem and Ortiz motivated plaintiffs’ attorneys and their allies to turn to institutional auspices other than the Advisory Committee on Civil Rules to reform Rule 23.

While the plaintiffs’ bar began to seek a more liberalized and elastic class action procedure, they began shifting towards more frequent use of the multidistrict procedural umbrella for resolution of class litigation.¹⁰² The recourse to MDL procedure had significant implications for class action reform, as the resolution of class litigation relied on the more concerted use of negotiated settlements.¹⁰³ With this shift, plaintiff and defense interests aligned in dissatisfaction with the constraints of the Amchem and Ortiz jurisprudence, as a barrier to judicial approval of settlement classes.¹⁰⁴

B. The ALI Principles of the Law of Aggregate Litigation

A cohort of aggregationist actors – attorneys, judges, and academicians – converged in the early twenty-first century to reform class action procedure. They turned to the American Law Institute to accomplish this end. Frustrated by the resistance or the inertia of many federal judges and the Advisory Committee on Civil Rules to liberalize class action procedure through doctrinal or rulemaking means, the aggregationists hoped to leverage the ALI’s considerable prestige and influence to accomplish what they failed to succeed through litigation.¹⁰⁵ The unstated, not-so-veiled aim of the ALI project was to articulate doctrinal principles and rule amendments that would carry the ALI imprimatur, to influence judges (and perhaps the Advisory Committee on Civil Rules) to modify the constrained views of many federal judges on class litigation.

The chronicle of the ALI Principles of the Law of Aggregate Litigation, launched in 2004, is best understood as reform pursued by repeat stakeholders with an agenda in the class action and complex litigation universe. At the time of its approval as an ALI undertaking, the ALI Council and membership was populated with numerous aggregationist litigators, judges, and academicians.¹⁰⁶ The Council chose Reporters with plaintiff sympathies and affiliations who aggressively sought the most liberal reform of Rule 23 to make it easier for plaintiffs to seek certification or settlement of aggregate litigation.¹⁰⁷ Class action defense attorneys had countervailing stakes in the Principles project: to maintain defendant-favoring restrictive class action jurisprudence for litigation classes, but to liberalize aggregate litigation principles for negotiated settlement approval.

From the outset, the Principles project was an ALI undertaking with an agenda to prod the judiciary and the rulemakers to a more flexible view of Rule 23 and its application in class litigation. Although for all appearances the Principles project ostensibly was to adhere to ALI norms of neutrality and non-partisanship,¹⁰⁸ it quickly became apparent from the first draft proposals that the Reporters had wholesale reform of Rule 23 as their goal.¹⁰⁹ Moreover, from the outset, the Principles project was imbued with the self-interests of prominent ALI Council members, Advisers, and the Reporters in relaxing the principles of class litigation.¹¹⁰

When the ALI launched the Principles project in 2004, the avid aggregationists had distilled their central grievances to several prime reform goals, including

(1) endorsement of liberalized, expansive judicial consideration of adequacy requirements, (2) restriction or reversal of the Supreme Court holdings in Amchem and Ortiz, (3) restriction or reversal of the Second Circuit’s post-judgment collateral attack holdings in Stephenson v. Dow Chemical,¹¹¹ (4) endorsement of restrictive intersystem preclusion of duplicative class litigation, (5) endorsement of liberalized, expansive judicial application of predominance requirements, including expansive views of choice-of-law principles, (6) endorsement of liberalized, expansive use of the limited issue class, (7) endorsement of a presumption of settlement fairness, (8) endorsement of unified criteria to assess settlement fairness, (9) endorsement of appropriate use of cy pres relief, (10) endorsement of contractual non-class settlement agreements, (11) endorsement of alternatives to the aggregate settlement rule, and (12) endorsement of limited judicial review for non-class aggregate settlements.¹¹²

Against the backdrop of this list of grievances, the Chief Reporter’s very first memorandum to the Advisers in August 2004 took direct aim at the Court’s Rule 23 jurisprudence, which he viewed as an annoying barrier to class litigation.¹¹³ The Reporter’s manifest pursuit of a wholesale root-and-branch revision of Rule 23 jurisprudence quickly raised the ire of critics, who noted that there appeared to be only one guiding principle to the Principles, which was “to change the law in numerous ways to facilitate the creation of ever more class actions and other forms of mass litigation.”¹¹⁴

Like all ALI Restatement and other law reform projects, the Principles went through several years of drafting, comment, and revision between 2004-2010. The project formulated principles or proposed rule amendments to address all the targets that were the focus of the aggregationists’ quest for a more liberalized class action practice.¹¹⁵ The final approved Principles set forth thirty-five sections with black-letter principles citing judicial authority and illustrative examples.¹¹⁶ Each section concluded with Reporters’ Notes that assessed of the effect of proposed modifications to current law.¹¹⁷ The introductory provisions broadly defined aggregate litigation and general principles. Subsequent sections addressed granular topics such as the handling of common issues, substantive law, preclusion doctrines as constraints on aggregation, judicial case management, remedies such as cy pres, and class and non-class settlements.¹¹⁸

Two central points may be suggested about the Principles’ final work product and its reception by the legal community. First, the multi-layered ALI review process served to temper the Reporters’ initial extreme aggregationist goals. The final Principles, however, clearly reflected the Reporters’ intentions to advance the law towards a more plaintiff-friendly class action jurisprudence.¹¹⁹ While the Reporters acknowledged disputes relating to existing jurisprudence, the Reporters nonetheless pervasively advocated for more elastic aggregationist principles, often supporting their preferences with assertions of arguable trends in developing law. And throughout the Principles, the Reporters rejected the more constrained formalism of existing Rule 23 jurisprudence, instead articulating a more “functional” and hence liberal approach to achieve aggregation.¹²⁰

Second, in the decade after its final publication, the Principles had scant impact on judicial decisionmaking or rulemaking reform of the class action rule.¹²¹ The Supreme Court cited the Principles’ concerning intersystem preclusion, albeit in a footnote reference.¹²² The Court has not cited any other provisions. More than one-third of reported federal citations reference the Principles’ recommendations for cy pres relief.¹²³ However, although a few courts embraced the ALI cy pres recommendations completely, other courts qualified their endorsements.¹²⁴ No other section of the Principles garnered as much attention as the cy pres provision. Instead, courts have made scattered references to various principles, often in footnotes.¹²⁵ Some courts have cited the Principles for unremarkable statements of law relating to the adequacy and fiduciary duties of class representatives.¹²⁶

Moreover, judges have not embraced the core reform proposals and recommendations set forth in the Principles.¹²⁷ For example, judges have not weakened the application of the central Amchem and Ortiz holdings. They have not embraced the recommendation that courts apply a functional approach to class litigation. Judges have not modified existing jurisprudence of mandatory Rules 23(b)(1)(A) and (b)(2) classes consistent with ALI suggestions. Nor have the Principles affected prevailing applications of the predominance requirement for class certification. Courts have eschewed the terminology of divisible and indivisible remedies. While some judges have found guidance in the Principles with regarding limited issues classes, most continue to rely on existing jurisprudence that cabins the use of this device to circumvent predominance requirements. Judges have not embraced the concept of an opt-in class. While a few courts have cited the Principles’ views on preclusion, judges have not wholesale overruled the Stephenson decision. Finally, courts have not relied on the Principles’ recommendations concerning non-class aggregate settlements.

C. The Fundamental Principles of the Negotiation Class

1. The Evolution of the Negotiation Class From the MDL Non-Class Aggregate Settlement Provisions of the ALI Principles Project

The negotiation class that Judge Polster certified in the Opiate MDL litigation was based on a draft law review article by two law professors – Professor Francis E. McGovern of Duke Law School and Professor William B. Rubenstein of Harvard Law School.¹²⁸ Judge Polster appointed Professor McGovern as a special master in the litigation, and Professor Rubenstein served as an advisor to the judge.¹²⁹ Their proposal for a novel negotiation class that they advocated to Judge Polster, however, was not original to the Opiate litigation. Between 2004 and 2010, both participated during the drafting stages of the ALI Principles of the Law of Aggregate Litigation.¹³⁰ Consequently, the negotiation class authors were aware of similar proposal set out in § 3.17 of the Principles.¹³¹ Thus, the negotiation class may be understood as part of an “organic procedural evolution” from earlier developments of the settlement class as well as the non-class aggregate settlement model that developed under MDL auspices.¹³²

The Principles’ primary focus addressed myriad issues concerning reform of existing class action jurisprudence. The final four sections of the Principles, however, turned to a consideration of and recommendations for judicial treatment of non-class aggregate settlements: an emerging trend on the aggregate litigation landscape. During the first decade of the twenty-first century, attorneys involved with large group claims gradually turned to the MDL procedure as a possible alternative mechanism for resolving aggregate litigation.¹³³ This nascent recourse to the MDL procedural umbrella to resolve mass claims subsequently burgeoned in the post-2010 era and came to dominate federal litigation aggregate.¹³⁴

One explanation for attorneys’ accelerating embrace of the MDL model was the freedom it afforded litigants from the requirements of formal class litigation and the accompanying jurisprudential constraints of Rule 23.¹³⁵ Although many cases transferred and consolidated under MDL auspices continued to be resolved through class action settlements,¹³⁶ attorneys turned to an innovative alternative model of non-class aggregate settlements accomplished under the MDL umbrella.¹³⁷ Both plaintiffs and defense attorneys aligned in interest in understanding the substantial benefits that MDL procedure provided attorneys in controlling, negotiating, and settling their cases free from the doctrinal constraints of traditional Rule 23 class litigation.¹³⁸

2. The Impact of the Vioxx and Other Non-Class Settlements on Rethinking and Reforming the Aggregate Settlement Rule

The Vioxx pharmaceutical litigation, which the Judicial Panel on Multidistrict Litigation approved as an MDL in 2005,¹³⁹ illustrates a prototype of the twenty-first century MDL non-class aggregate dispute-resolution paradigm.¹⁴⁰ The resolution of the Vioxx litigation provided a problematic blueprint for other non-class aggregate settlements such as the Zyprexa MDL litigation.¹⁴¹ The Vioxx settlement raised an issue concerning the requirements of the aggregate settlement rule when multiple law firms with inventories of individual clients negotiated an aggregate non-class settlement. The Vioxx settlement created a payment grid for claimants based the nature and severity of their injuries. The multiple plaintiffs’ law firms had signed contracts with the defendant Merck to secure all the clients’ acceptances to the settlement. The resulting Vioxx deal was an “all-or-nothing” settlement.¹⁴² Each signatory law firm was obligated to recommend the deal to each of its Vioxx clients and to resign from representing any client who might decline the firm’s advice to accept the settlement.¹⁴³ Without a law firm’s commitment to secure all its Vioxx clients, Merck could reject the firm’s enrollment in the Vioxx payment program and none of the firm’s clients would be eligible to participate. This settlement placed tremendous pressure on the plaintiffs’ law firms to induce all their clients to accept the settlement.¹⁴⁴

The Vioxx settlement represented an idiosyncratic approach to MDL non-class aggregate settlements; the contractual nature of the arrangements between the law firms and the defendant generated substantial criticism.¹⁴⁵ As the MDL non-class model evolved, the contractual nature of the parties shifted. Individual claimants signed contractual retention agreements with counsel, who might then represent hundreds or thousands of claimants in negotiations with a defendant or defendants.¹⁴⁶ The aggregate settlement rule required counsel to present a settlement to individual claimants and obtain the consent and agreement of each to the settlement.¹⁴⁷ Thus, attorneys negotiated and crafted a complex settlement agreement based on contract principles with individual claimants rather than with the defendant. These non-class aggregate settlements were not subject to Rule 23 class action requirements.¹⁴⁸

The application of the aggregate settlement rule proved problematic in the MDL non-class setting. In massive group litigation, the defendants’ chief goal is to accomplish “global peace,” that is, to secure a settlement or judgment binding all claimants. Defendants want global peace to obtain complete closure of the defendants’ litigation liabilities.¹⁴⁹ The defendants’ quest for global peace may result in unfairness when attorneys reduce the amount paid to some plaintiffs in order to induce others to join the settlement by paying them more.¹⁵⁰ This quest for closure causes defendants to predicate final settlement on the plaintiffs’ attorneys securing the consent of all individual claimants to the deal. This need for universal claimant approval often proves difficult to secure and provides individual hold-out claimants with a veto that effectively jeopardizes a settlement that most other claimants would approve.¹⁵¹ In addition, the need for universal approval places pressure on attorneys to persuade their clients to accept a proffered settlement. In some egregious instances, attorneys – in violation of the aggregate litigation rule – provide inaccurate or misleading information to individual clients to encourage their acceptance of a settlement.¹⁵²

Significantly for the conceptual development of the negotiation class, the ALI Principles Reporters — Professors Issacharoff, Silver, Nagareda, and Klonoff, as well as ALI consultative member Prof. Francis McGovern — embraced the non-class aggregate MDL modality for resolving aggregate litigation.¹⁵³ In doing so, they recognized the difficulties posed by the aggregate settlement rule in resolving non-class aggregate litigation. Early in drafting the ALI Principles, Professors Issacharoff and Klonoff advocated for a reform or modification of the aggregate settlement rule in large scale non-class litigation,¹⁵⁴ based on Professors Charles Silver and Lynn Baker’s critique of the rule.¹⁵⁵ This critique suggested that while the aggregate settlement rule made sense in non-complex cases involving few claimants — such as a car crash — the aggregate settlement rule impeded settlement in the non-class context involving hundreds or thousands of claimants.¹⁵⁶ The criticisms centered on the unfairness of the veto power of a few holdout claimants to scuttle a settlement for everyone else.¹⁵⁷ Silver and Baker proposed that the aggregate settlement rule be liberalized to permit aggregate settlements to proceed without universal agreement of all individual claimants to the settlement. This proposal became the basis for the ALI’s §3.17 of the Principles.

3. Section 3.17 of the ALI Principles of the Law of Aggregate Litigation

The ALI Reporters drafted the final four sections of the Principles with the Vioxx, Zyprexa, and other non-class aggregate settlements as a template for an innovative model for resolving group claims.¹⁵⁸ While the Principles’ thirty-one preceding sections were devoted to revising traditional class action jurisprudence, Sections 3.15 through 3.18 proposed authorization of non-class aggregate settlements. The Reporters were committed to an agenda of reforming Rule 23 to unburden class litigation from doctrinal constraints. Beyond liberalizing traditional class jurisprudence, the Reporters and Professor McGovern — who had been involved in non-class aggregate settlements — had a more radical agenda in mind. They used the opportunity presented by the Principles project to gain the ALI’s imprimatur for a departure from traditional class litigation, but also to offer an alternative MDL modality that afforded optimal attorney control over aggregate settlements while minimizing judicial intervention and oversight of contractual agreements.

The Principles’ centerpiece for resolving non-class aggregate settlements was § 3.17, the precursor of the negotiation class.¹⁵⁹ Section 3.17 created an aggregate settlement model based on claimant consent, implemented through two alternative procedures. First, attorneys were authorized to negotiate settlements that would be governed by the existing aggregate settlement rule. Claimants would have the opportunity to receive individual settlements negotiated by attorneys, provided each claimant gave informed consent in writing. Claimants could give informed consent by review of all other claimant settlements, or by agreement to a settlement formula for division among the claimants.¹⁶⁰ The Reporters acknowledged that this non-class settlement proposal incorporated the requirements of the aggregate settlement rule.¹⁶¹ They suggested that implementing this regime would not require a departure from existing law, but that professional responsibility codes would need to add the provision that the aggregate settlement rule could be satisfied if the individual claimants were allowed to review the formula by which a settlement would be allocated.¹⁶²

Second, as an alternative and in advance of any settlement offer, claimants could waive the requirement of individual settlement approval, and substitute instead an ex-ante agreement to be bound by a voting procedure. The Reporters indicated that the purpose of this provision was to address the problem of individual hold-out claimants who “could exercise control over a proposed settlement and to demand premiums in exchange for approval.”¹⁶³ In essence, by agreeing to be subject to this alternative regime, claimants were waiving their right to individual decisionmaking over a settlement approval.¹⁶⁴

In this alternative, individual claimants would agree in writing to a voting procedure: namely, to be bound by a substantial majority vote of all claimants concerning a settlement proposal. If the settlement entailed different categories of claimants, then a claimant would agree to be bound by a substantial majority vote of each category.¹⁶⁵ Claimants could agree to the voting procedure at any time after formation of an attorney client relationship.¹⁶⁶ However, attorneys were duty-bound to inform their clients of the option to settle by the non-voting option.¹⁶⁷ If claimants chose to bind themselves to a settlement through a voting procedure, the power to approve a settlement rested with the claimants, who could assign their power to an independent agent. This approval power could not be assigned to the claimants’ counsel.¹⁶⁸

The voting alternative was permissible only in cases involving a substantial amount in controversy, many claimants, and where an agreement required approval by a substantial majority of claimants. A legislative or rulemaking body was to determine these minimum requirements for a voting resolution of claims.¹⁶⁹ Section 3.17 set forth provisions for implementing the voting alternative, requiring the agreement to specify the procedures to approve a settlement offer, the manner of allocating proceeds among claimants, or the future development of an allocation mechanism.¹⁷⁰

The voting procedure alternative imposed duties on attorneys to provide full disclosure to assist clients to decide whether to enter into a settlement agreement, challenge the fairness of the settlement agreement, or seek advice of independent legal counsel.¹⁷¹ Lawyers were required to inform their clients that they could not terminate their relationship because the client declined to enter into a voting procedure agreement.¹⁷² If an attorney simultaneously had clients who opted for the non-voting and voting procedures, the attorney was required to inform the non-voting clients that they would continue to exercise independent control over their own cases and could refuse a settlement after the terms were disclosed.¹⁷³

A voting agreement was enforceable upon a determination that the agreement was procedurally and substantively fair and reasonable.¹⁷⁴ Facts and circumstances determining procedural reasonableness included sophistication of the claimants, information disclosed to the claimants, review of the settlement terms by a neutral or special master, whether the claimants had some prior common relationship, and similarity of the claims.¹⁷⁵ Facts and circumstances determining substantive fairness included costs, risks, probability of success, delays in obtaining a verdict, equitable treatment of claimants relevant to one another, and disadvantage to certain claimants by the settlement as a whole.¹⁷⁶

The Reporters left several issues unresolved relating to their alternative settlement proposals. They left to legislative drafting to define the minimum number of claimants or the amount in controversy sufficient to invoke § 3.17( b).¹⁷⁷ They did not determine what would constitute a substantial majority vote for approval of a settlement.¹⁷⁸ In addition, they did not address what law would apply under § 3.17 in an action involving claimants from multiple jurisdictions, instead defaulting to the application of existing choice-of-law rules.¹⁷⁹ Finally, the Reporters acknowledged that the aggregate settlement proposal in §§ 3.17(b)-(e) departed from existing law and professional responsibility codes in all jurisdictions would be needed to implement the voting alternative to the aggregate settlement rule.¹⁸⁰ In so doing, the Reporters pointed to analogous voting procedures in the bankruptcy code.¹⁸¹

4. Reactions to Section 3.17 as a Precursor to the Negotiation Class

During the composition of Principle § 3.17, the Reporters’ successive drafts received substantial commentary and criticism from ALI members.¹⁸² The final publication of the Principles in 2010, elicited an array of critical commentary.¹⁸³ In spite of the negative reactions to § 3.17, the proposal nonetheless garnered support from many ALI members, academicians, and practicing attorneys.¹⁸⁴

The core criticisms of § 3.17 centered on several objections. First, commentators pointed out that it was unfair to seek the advance consent from clients before clients had sufficient information to bind themselves to a voting procedure.¹⁸⁵ Scholars questioned whether clients’ advance consent to aggregate settlements could ever be sufficiently authentic to justify the imposition on clients’ rights.¹⁸⁶ Requiring clients to consent even before negotiations commenced meant that clients rarely would be fully informed at the time they had to agree to a waiver under Model Rule 1.8.¹⁸⁷ Moreover, even if litigants and courts could address the problems of inauthentic consent, the advance-consent proposal “would place lawyers in a fundamentally untenable position.”¹⁸⁸ If claimants contested allocation awards to other claimants, the conflicts among clients of a not-yet-negotiated aggregate settlement would place the lawyer in the role of adjudicating clients’ conflicting awards vis-à-vis other claimants.¹⁸⁹ The most extreme argument against the ALI § 3.17 proposal posits that claimants cannot consent to the types of conflicts that are inherent in aggregate settlements.¹⁹⁰

Second, commentators contended that the attorneys’ and judicial judges’ interests were not sufficiently aligned with claimants’ interests to justify the tradeoff between individual client representation and efficient case administration, one goal of aggregate dispute resolution.¹⁹¹ The participation requirements of non-class aggregate settlements placed substantial pressure on the plaintiffs’ lawyer to obtain consent from all or a large majority of their clients. The failure to obtain the agreement of the required percentage of participating clients therefore could ruin the deal for the entire group and for the attorney’s interest in recovering fees. A lawyer’s duty of loyalty might cause the attorney to pressure the attorney’s clients to accept a settlement deal, accompanied by the threat to withdraw as counsel if the client declined the settlement. Thus, lawyers might “provide less-than complete-and-honest disclosures about the terms of the overall deal.”¹⁹²

Third, plaintiffs’ lawyers might take advantage of the disparity of sophistication between clients and their attorneys in mass tort litigation to induce their clients to accept a less-than-optimal individual award.¹⁹³ Scholars suggested that the viability of the § 3.17 advance consent model depended on each client’s level of sophistication and comprehension. Thus, clients inexperienced with legal services might be unlikely to base their advance consent on genuine understanding of the trade-offs.¹⁹⁴ “Clients often sign whatever retainer agreement the lawyer gives them; the fact that a client signed the lawyer’s standard retainer agreement would offer little reason to be confident that the client knowingly gave up the right to decide whether to accept a settlement offer.”¹⁹⁵ More fundamentally, the advance consent procedure at the heart of § 3.17 shifted too much settlement power from the claimants to their lawyers.¹⁹⁶

Commentators noted additional issues with the § 3.17 proposal. For example, some suggested that the veto power that minority of claimants supposedly held — the so-called “hold-out” problem — was greatly exaggerated. Therefore, there was no compelling need to create a new rule to mitigate the problem of minority holdout claimants.¹⁹⁷ Other scholars suggested that Model Rule 1.8 embraced the concept that non-economic values should not be lightly discarded by attorneys during negotiations to a settlement. The implementation of § 3.17, however, might encourage or induce attorneys to undervalue certain claims, in derogation of clients’ interests.¹⁹⁸ Finally, some critics claimed that the § 3.17 proposal could not be employed to resolve the claims of exposure-only or contingent future claimants.¹⁹⁹

5. Judicial Reception of the ALI § 3.17 Proposal

The ALI § 3.17 proposal for a non-class settlement based on a voting procedure failed to gain judicial traction. Although many federal and state judges had served as advisers to the ALI project, after publication the judiciary — even the known aggregationist judges — were not buying into the novel proposals in the Principles’ concluding sections. Since the publication of § 3.17 in 2010, no federal or state court has adopted the non-class settlement proposal and its supermajority voting mechanism.²⁰⁰ Indeed, until Judge Polster approved a negotiation class in the Opiate litigation based on the § 3.17 proposal, only one federal court cited § 3.17 in a concurring opinion, in a footnote to an antitrust class action.²⁰¹ The footnote citation to § 3.17 had nothing to do with endorsement of the concept of a negotiation class; rather, the footnote referred to § 3.17 Comment (e) for the proposition that the ALI requirements for non-class settlements were analogous to those applied to class action settlements.²⁰²

III. The Negotiation Class Implemented

A. The McGovern-Rubenstein Negotiation Class Proposal

1. The Opiate MDL Litigation

The § 3.17 proposal for a non-class settlement based on consensual waiver and a voting mechanism lay dormant for nearly a decade, lurking in the shadows of numerous MDLs, awaiting a propitious aggregate litigation for the § 3.17 advocates to resuscitate this novel idea. The advent of the opiate crisis and the attendant MDL litigation provided just such a vehicle for breathing life into § 3.17. The same cluster of academic proponents of § 3.17 — Professors Issacharoff, Klonoff, McGovern, and Rubenstein — now united in the Opiate litigation to advocate for implementation of a model based on § 3.17.²⁰³ They now gave the § 3.17 concepts a name and an explanatory law review article: the negotiation class.²⁰⁴

A great deal has been written documenting the opiate addiction and overdose crisis in American cities and the advent of litigation concerning remediation for the public health harms resulting from the conduct of alleged bad actors responsible for the crisis.²⁰⁵ A summary of the conduct of the Opiate litigation provides context for understanding the role of the negotiation class in attempting to resolve this MDL. The development and evolution of this massive MDL provides insight into the influence that a few behind-the-scenes academic advisers and judicial surrogates can exert over a managerial MDL judge. These events raise questions concerning the legitimacy of such unparalleled influence from non-party advisers, who nonetheless have their own agendas as well as of their allies.

The Opiate litigation was distinctive in that the plaintiffs who pursued litigation consisted of hundreds of cities and counties. These public-entity plaintiffs contended that the opiate manufacturers, distributors, pharmacies, retailers, and medical professionals acted in concert to manufacture, prescribe, and distribute opiates to millions of Americans. Consequently, millions of individuals became addicted to opiates, often resulting in overdose deaths.²⁰⁶ The defendants’ actions harmed these public entities by forcing the cities and counties to divert significant funding to emergency public health and safety responses to overdose victims. The plaintiffs sought “reimbursement for monies they have expended – and continued to expend” on opiate-related costs, and other relief from the defendants for the harms caused by their actions.²⁰⁷

The plaintiffs alleged claims based on the Racketeer Influenced and Corrupt Organization Act (RICO) and its state analogues; state statutory public nuisance law, and several state common law claims.²⁰⁸ The Judicial Panel on Multidistrict Litigation authorized an Opiate MDL on December 12, 2017, and all the individual opiate lawsuits were transferred to the Northern District of Ohio, under the MDL supervision of Judge Dan A. Polster.²⁰⁹ The Opiate MDL encompassed more than 2,000 individual actions.²¹⁰

President Bill Clinton appointed and Congress confirmed Judge Polster to the federal bench in August 1998; Judge Polster assumed senior status on June 31, 2021.²¹¹ Prior to the authorization of the Opiate MDL and transfer of cases to Judge Polster, he had relatively limited experience with Rule 23 class actions²¹² and had managed two MDL litigations.²¹³ In February 2008 the Judicial Panel had authorized MDL 1909 and transferred cases to the to Judge Polster’s supervision.²¹⁴ The plaintiffs alleged that gadolinium contrast dyes might cause nephrogenic systemic fibrosis in patients with impaired kidney function. Judge Polster presided over this gadolinium MDL for five years, but ultimately recused himself from further involvement with the MDL in 2013.²¹⁵ The hundreds of docket entries, case management orders, and motion practice in the Gadolinium MDL reflected the complications of this long-running unresolved MDL proceeding, including several bellwether trials spanning many months. This MDL was unresolved at the time Judge Polster recused himself from further supervision of the litigation.

In February 2012 the Judicial Panel on Multidistrict Litigation assigned MDL 2319 to Judge Polster.²¹⁶ This litigation related to alleged false and misleading assertions concerning flea control products marketed for use on cats and dogs.²¹⁷ Eleven months later Judge Polster granted the defendants’ motion for summary judgment, terminated the case, and dismissed it as final.²¹⁸ Given the rapid disposition of this MDL on summary judgment, this flea products marketing MDL most likely did not provide Judge Polster with an in-depth experience of protracted adversarial MDL litigation.

It seems fair to suggest that Judge Polster’s prior experience with the lengthy Gadolinium MDL litigation informed many of his views concerning the best way to expeditiously resolve mass tort actions when the Opiate MDL landed on his docket. In addition, Judge Polster had considerable experience with mediating disputes ⎯ contributing to his belief that disputes were better resolved through non-litigious means.²¹⁹ Indeed, Judge Polster had studied mediation techniques with Professors Francis McGovern and Eric Green, as well as Ken Feinberg.²²⁰ It is unsurprising, then, that Judge Polster turned to Professor McGovern to assist in resolving the massive Opiate MDL.

During Judge Polster’s initial teleconference with the parties in the Opiate litigation, he indicated that he had prior experience with two MDLs and that he believed the MDL panel had picked him to manage the Opiate MDL because he would expeditiously resolve the litigation.²²¹ Judge Polster’s initial comments to the Opiate MDL attorneys telegraphed the way in which he intended to manage the sprawling litigation, which proved prophetic for his subsequent embrace of the McGovern-Rubenstein negotiation class proposal. He indicated that he would not allow the Opiate MDL to drag on for five to ten years, a lesson most likely learned from his Gadolinium MDL experience. He was not sanguine about bellwether trials (another lesson learned from the Gadolinium MDL), and he didn’t believe the hundreds of lawsuits could be resolved through litigated trials. Consequently, he gave notice to the parties that he would immediately encourage settlement negotiations. Moreover, he signaled that he would not be bound by ordinary rules and procedures to conclude the litigation.²²²

It is perhaps useful to understand that at the time the MDL Panel handed Judge Polster the Opiate MDL, he was nearing retirement and senior status. Thus, resolving the opiate litigation would become a capstone accomplishment to his lengthy career on the bench. The Opiate MDL afforded Judge Polster the opportunity to demonstrate his mediation skills, judicial compassion, empathy, and benevolence to victims of the opiate epidemic that was devastating communities throughout the United States.²²³ As the MDL limitation progressed, Judge Polster increasingly used his platform as the MDL judge to express personal views concerning the opiate crisis, the impact on families, and the culpability of defendant corporations.²²⁴ His extrajudicial statements and perceived heavy-handed management of the MDL subsequently would lead defense lawyers to seek to disqualify Judge Polster from further management of the MDL, based on accusations of bias and prejudice towards the defendants.²²⁵

Turning to the actual work of managing the MDL, Judge Polster initially followed the Federal Judicial Center’s playbook for judges supervising MDL litigation.²²⁶ However, from the outset of the MDL, Judge Polster’s efforts were laser-focused on accomplishing a swift settlement.²²⁷ In a somewhat unorthodox initiative, on February 7, 2018 (only two months into his supervision of the MDL), Judge Polster authorized and approved special negotiation teams to discuss settlement.²²⁸ Five months after he assumed supervision of the MDL, Judge Polster issued the first Case Management Order, creating several different tracks dealing with aspects of the litigation delineating routine matters such as pleadings, motions, electronic filing, document preservation, discovery, expert witnesses, trial settings, and coordination with state proceedings.²²⁹

Significantly, one month into his assignment of the Opiate MDL, Judge Polster appointed three special masters to assist him with various aspects of managing it.²³⁰ The use of special masters to assist federal judges in complex litigation ⎯ especially mass tort litigation ⎯ had become an increasing phenomenon among federal court judges.²³¹ Again, signaling his intention to focus on early and expeditious settlement, Judge Polster appointed Professor Francis McGovern and Cathy Yanni as special masters who were tasked with overseeing settlement negotiations.²³² He also appointed special master David R. Cohen who was tasked with overseeing all discovery matters. Although it was not unusual for Judge Polster to appoint a special master, it was unusual to appoint three.²³³

In another unorthodox action, Judge Polster engaged Professor William Rubenstein of Harvard Law School as an expert adviser on class action and other legal issues, apparently on the urging of Francis McGovern.²³⁴ Federal Rule of Evidence 706 as well as the court’s inherent authority authorizes judicial retention of court-appointed experts, who typically serve the court as a technical adviser concerning admissibility questions, or to assist the factfinder with merits decisions.²³⁵ Presumably, however, federal judges do not need expert academic assistance on legal issues. Judge Polster’s retention of an academic professor to advise on legal questions, then, was another boundary-stretching dimension of his management of the Opiate MDL.

2. The Negotiation Class Proposal

Consistent with the well-known tenets of complex litigation, the Opiate defendants refused to engage in any settlement proposal that would not assure them global peace; that is, complete closure and preclusion of future claims. To address and accommodate this reality, Judge Polster urged the parties to contemplate “novel solutions to a novel problem.”²³⁶ Given Judge Polster’s pre-disposition to settle the Opiate MDL quickly, combined with his immediate appointment of two special masters to oversee settlement along with a Harvard class action expert, it is unsurprising that Judge Polster was highly susceptible to the advocacy of his advisers for implementation of the novel procedure of the negotiation class.

A chronicle of federal mass tort litigation spanning fifty years suggests an evolutionary arc of aggregationist actors seeking to build ever-better models for group resolution of these massive, sprawling cases. It is a history of judicial experimentation and reinvention of procedural modalities ⎯ some successful and many not. The Opiate MDL triggered a convergence of aggregationist actors with aggregationist agendas seeking to implement a novel solution that would provide a template for future aggregate litigation. It brought together a senior federal judge with a bias towards mediated resolutions with academic advisers seeking to exploit the opportunity afforded by the Opiate MDL to convince the judge and litigants to implement an innovative solution.

Among the many unorthodoxies of the Opiate MDL, Professor McGovern and Rubenstein had unparalleled ex parte access to Judge Polster, which provided the academics with continuous opportunities to influence the judge and interact with the parties.²³⁷ Sometime between Judge Polster’s appointment of the special masters in January 2018 and the plaintiffs’ motion for class certification in June 2019, Professor McGovern and Rubenstein advanced the concept of a negotiation class to the parties and Judge Polster. Professor McGovern indicated that the genesis of the negotiation class idea was a phone call from some MDL plaintiffs’ lawyers “wondering how they could participate in some type of overall settlement, even though they were not part of the Plaintiffs’ Executive Committee.”²³⁸ “[T]he question was, ‘How do you put together a group of folks who could facilitate their bargaining power and still provide defendants the kind of closure they are looking for in the settlement of a case?’”²³⁹

In response to this inquiry, the professors had ready a draft paper setting forth the negotiation class concept and the means of its implementation.²⁴⁰ Unlike the ALI § 3.17 proposal that was formulated to address consent issues in non-class aggregate settlements, the McGovern-Rubenstein proposal sought to locate their negotiation class in traditional Rule 23 jurisprudence. As such, their model represented an amalgam of class action, non-class action, and bankruptcy jurisprudence.²⁴¹ This approach had much to recommend itself because it avoided the problems engendered by the aggregate settlement rule that bedeviled non-class aggregate settlements. Moreover, any settlement accomplished through the negotiation class would be subject to judicial approval in the first instance and appellate review in the second.²⁴²

The negotiation class was firmly anchored in the ALI Principles of the Law of Aggregate Litigation. Thus, McGovern and Rubenstein explained:

In this Article, we offer heterogenous class members a mechanism for cooperation, a new form of class certification that we call negotiation class certification. The approach builds on a model that the American Law Institute has endorsed for aggregate (nonclass) litigation: a group of plaintiffs represented by a single lawyer agree on a formula for allocation of a lump sum settlement among themselves, negotiate with the defendants as a group, and then take a vote on any proposed deal, with a supermajority binding everyone in the group.²⁴³

In addition to modeling their negotiation class on the ALI Principles, Professors McGovern and Rubenstein anchored the proposed negotiation class on a pastiche of economic, political, and sociological theories: the tragedy of the commons,²⁴⁴ the collective action problem,²⁴⁵ the social psychology of procedural law,²⁴⁶ and quasi-democratic sounding principles.²⁴⁷ It relied heavily on bankruptcy law principles to address the problems of litigation that entailed different classes of interest,²⁴⁸ and it relied on bankruptcy law and the ALI § 3.17 as authority for its voting mechanism.²⁴⁹

The authors intended the negotiation class to address the problems engendered by heterogenous class actions that embraced claimants with varying interests and strength of their claims.²⁵⁰ The model entailed several phases.²⁵¹ First, class members would work together to generate a distributional metric or allocation plan to distribute a lump sum settlement to class members, along with a voting procedure for any proposed settlement.²⁵² Second, the class attorneys would then ask the court to certify a Rule 23(b)(3) opt-out negotiation class for the sole purpose of negotiating a lump sum settlement.²⁵³ The class certification process would be subject to all the ordinary Rule 23(a) and (b) requirements.²⁵⁴ Third, if the court granted certification, then the court would direct notice to class members that explained the allocation metric, that any negotiated settlement would be put to a class vote, and a supermajority vote would bind the entire class.²⁵⁵ Any class member who did not wish to be bound to the distributional metric or the voting process could opt out.²⁵⁶ Fourth, once the opt-out period ended and the size of the class was determined, settlement negotiations would ensue, with class counsel, class representatives, and the defendants negotiating a settlement.²⁵⁷ Fifth, if the parties accomplished a settlement, it would be put to a classwide vote. ²⁵⁸ If a supermajority of class members voted in favor, then the parties would seek final judicial approval of the settlement.²⁵⁹

The negotiation class scheme envisioned class members assisting in generating a metric for distributing a settlement and a voting procedure.²⁶⁰ The authors anticipated that the allocation method would be developed through bargaining between large stakeholders and their lawyers on the one hand, and putative class counsel and class representatives of smaller stakeholders on the other hand. The authors conceded that in practice it was likely that the lawyers themselves would do most of the negotiating, “so we do not want to oversell the democratic nature of the bargain.”²⁶¹ “Indeed,” they wrote, “the participants are surely driven by self-interest, and the process is just as surely messy, complex, and not perfectly democratic.”²⁶²

The authors viewed the negotiation class proposal as the most efficacious means to accomplish a fair and adequate settlement of heterogeneous classes involving class members with varying strength of claims.²⁶³ They suggested that the negotiation class concept was beneficial to both plaintiffs and defendants, affording defendant at the outset “a precise sense of the scope of finality the settlement will produce, hence encouraging a fulsome offer by ensuring meaningful peace.”²⁶⁴

In justifying their novel proposal of a settlement class, McGovern and Rubenstein pointed out that historically the settlement class concept had been controversial and novel, suggesting that it was “developed out of whole cloth in the late nineteenth twentieth century.”²⁶⁵ Yet in spite of the relative novelty of the settlement class in its day, it had nonetheless become a “stock device” in class action practice.²⁶⁶ The authors argued that their negotiation class proposal was less ambitious and superior to the settlement class, where lawyers negotiate on behalf of a class prior to class certification or judicial scrutiny of class cohesiveness or the adequacy of representation.²⁶⁷ Echoing the same debate that surrounded the challenges to the settlement class during the 1990s, McGovern and Rubenstein argued that Rule 23 authorized the negotiation class, did not define of limit the purposes for which a class action might be certified, and did not textually require that class members be provided with a second opt-out opportunity.²⁶⁸ Finally, they contended that their negotiation class secured and furthered an array of due process values in providing class claimants with conventional notice, an opportunity to be heard, participate, opt-out as well as adequate representation.²⁶⁹

B. Judge Polster’s Certification of a Negotiation Class

On February 7, 2018 ⎯ at the very outset of the Opiate MDL ⎯ Judge Polster appointed a Plaintiffs’ Settlement Committee and authorized a support committee.²⁷⁰ On June 14, 2019, plaintiffs’ counsel filed a notice and motion for certification of a Rule 23(b)(3) negotiation class on behalf 51 cities and counties.²⁷¹ The notice indicated a negotiation class website had been created²⁷² and invited the cities and counties to participate as voluntary members of the negotiation class. The notice further explained that the cities and counties had the right to exclude themselves from the negotiation class, in which case they would not participate in the settlement or be bound by it. The cities and counties that remained in the class would have vested voting rights. A settlement would need to be approved by a supermajority vote of 75% or more of the litigating and non-litigating cities and counties; 75% of the populations, and 75% of the allocations to the cities and counties.²⁷³ Proposed settlements that received a supermajority vote would then be subject to judicial review for fairness, adequacy, and reasonableness.²⁷⁴All members of the proposed negotiation class were invited to comment on the proposal.²⁷⁵

The Opiate website contained a settlement allocation map and calculator, a detailed description of the voting procedure, a proposed class action notice, and FAQs. Prospective class members could evaluate whether to participate based on their knowledge of the portion of their cities’ and counties’ aggregate share of each proposed settlement that would be allocated to each county and its constituent cities. An intricate Settlement Allocation Model determined each class members’ aggregate share.²⁷⁶ After settlement approval, each county and constituent city would decide the internal allocation of the level settlement award among themselves.²⁷⁷

The negotiation class created six categories of claimants, each of which needed to accomplish a supermajority vote of 75% to reach a binding settlement.²⁷⁸ Each class member would vote only once, and no settlement could be approved as binding unless all categories were in favor of the settlement at the 75% level.²⁷⁹ The proposed negotiation class further provided that 75% of the class share of the settlement would be allocated to counties and cities; 15% would be set aside for a “Special Needs” fund, and 10% would bet set aside to pay for attorneys fees and costs. Any unused portion of the latter two funds would revert to the benefit of the class.²⁸⁰

Judge Polster set a hearing date for June 25, 2019. On the same day that plaintiffs’ counsel filed their notice and motion for certification of the negotiation class, Joe Rice ⎯ a lead plaintiff’s attorney in the Opiate MDL and Adviser on the ALI Principles of the Law of Aggregate Litigation ⎯ published a blog post extolling the negotiation class and explaining why the negotiation class was both novel and needed.²⁸¹ Groups of distributor and pharmaceutical defendants responded to the motion, and two sets of State Attorneys General – representing 30 states, the District of Columbia, and Guam sent the court letters of disapproval of motion.²⁸² At the June 25 hearing, Judge Polster authorized the plaintiffs to re-brief their motion in light of the concerns and objections that had surfaced; they filed a renewed and amended motion for class certification on July 9, 2019.²⁸³ In response to the renewed motion, various distributors, pharmacies, and cities filed briefs in opposition to class certification.²⁸⁴

In addition, thirty-seven State Attorneys General and the Attorney Generals of the District of Columbia and Guam strongly urged Judge Polster not to certify the negotiation class.²⁸⁵ The state AGs contended that the negotiation class unconstitutionally impinged on state sovereignty and was unworkable because Judge Polster could not approve a settlement that purported to allocate settlement money among local governments without the states’ approval. Moreover, the negotiation class processes would add layers of complexity and delay thereby defeating the goal of streamlining settlement of the litigation.²⁸⁶

1. The District Court Order Certifying the Negotiation Class

On August 6, 2019, Judge Polster conducted a hearing on the class certification motion and on September 11 he issued his Memorandum Opinion Certifying the Negotiation Class.²⁸⁷

Judge Polster’s opinion initially painted the opiate litigation crisis in sweeping terms. From the outset he favored swift settlement of the MDL to provide expeditious relief to the counties and cities across the country suffering from the opiate health crisis. He recognized that the defendants would settle for nothing less than “global peace” of all claims. This posed a problem because a significant number of counties and cities were already litigating, and if they opted-out of a settlement ⎯ leaving defendants to settle with only non-litigating claimants ⎯ this would subvert defendants’ goal of a universal settlement of all claims. The solution to this situation, then, “required creative thinking,” and the parties, their experts, and the special masters devised the innovative solution of the negotiation class.²⁸⁸

Judge Polster explained that the negotiation class ⎯ based on the McGovern-Rubenstein drat article ⎯ addressed procedural problems by providing for class certification and an opt-out prior to a settlement, which fixed the size of the class and informed the defendant of the scope of its responsibility. Class members’ due process protections rights were accomplished protected both at the front end and back end the litigation in accordance with the requirements of Rule 23(a), (b)(3), (g), and (h).²⁸⁹ Any settlement approved by a 75% supermajority vote was subject to judicial approval under Rule 23(e). Judge Polster discussed the granular details of the settlement class mechanism, and he largely endorsed the plaintiffs’ processes set forth in their motion for class certification ⎯ which substantially tracked the stages of the McGovern-Rubenstein negotiation class proposal.²⁹⁰

Judge Polster’s certification order included a few modifications to the plaintiffs’ proposal. He selected a case filed by Summit County, Ohio and declared that entity’s case number would be attributed to the class action going forward.²⁹¹ He certified the negotiation class as to federal RICO claims, rather than the multiple state law claims alleged in class members’ varying lawsuits.²⁹² The court also invoked Rule 23(c)(4) to certify two issues related to the federal Controlled Substances Act.²⁹³ Notwithstanding the certifications of particular claims, Judge Polster indicated that the class was to negotiate “any . . . claims,” federal or state, arising out of a common factual predicate.”²⁹⁴

Judge Polster addressed and rejected several objections to the negotiation class. He noted the opposition of a majority of the state AGs, but he nonetheless stressed that no one involved in the Opiate litigation was being coerced into settling through the negotiation class. No defendant had to employ it and the states could continue their litigation if they wished. The certification of the negotiation class “simply provide[d] [the litigants] with an option, and in the Court’s opinion it is a powerful, creative, and helpful one.”²⁹⁵

Echoing the debates over the legitimacy of the settlement in the 1990s,²⁹⁶ defendants challenged the negotiation concept, arguing that Rule 23 did not provide for such a novel procedure. Judge Polster indicated that Rule 23 authorized the negotiation class because the rule neither limited nor prescribed the uses to which the class action mechanism might be applied. Rule 23 did not textually refer to “trial” or “settlement” purposes, so by implication the rule encompassed negotiation uses as well. Judge Polster noted that Rule 23 contained no reference to the concept of the settlement class, but after many years the Supreme Court validated and upheld the settlement class concept.²⁹⁷ Apart from the history and text of Rule 23, Judge Polster noted that class action litigation was anchored in equity principles and courts had long recognized that as an equitable device it should be given flexible meaning and application.²⁹⁸

Judge Polster also dispensed with other objections to the negotiation class. He concluded that the requirement that class members opt-out prior to knowing the settlement did not violate due process because in normal litigation classes claimants must decide to opt-out in advance of knowing the result of the suit. If attorneys subsequently settle a suit class members may be afforded a second opt-out right, but Rule 23 does not require this. If this need arose during the negotiation class the court had the discretion to order a second opportunity to opt out.²⁹⁹ Judge Polster quickly rejected the objection that other courts had repudiated 75% supermajority voting procedures in on-class litigation; he concluded that the representative nature of class litigation supported this means.³⁰⁰

Finally, Judge Polster denied the objection that the negotiation class violated Article III of the Constitution on the grounds that it was unrelated to a judicial function. Judge Polster concluded that in certifying a negotiation class, “the Court undertakes the familiar judicial function of ensuring that the class certification requirements are met, and the absent class members’ interests are protected by those who purport to represent them, prior to those agents negotiating a settlement for absent class members.”³⁰¹

2. Post-Certification Developments in the Negotiation Class

The Ohio State Attorney General, who had spearheaded the state AGs opposition to the negotiation class, immediately attacked Judge Polster’s certification of the negotiation class. He issued a statement declaring: “[Judge Polster’s] process is fundamentally flawed because it binds people to buy a pig in a poke. Every community has to make a determination whether they’re in or out before they even know what the deal is.”³⁰² Shortly after approval of class certification, attorneys representing the State Coalition’s Opt-Out Working Group wrote to plaintiffs’ class counsel expressing concerns that they still had not received a list of the litigating entities.³⁰³ This was important to the state opt-out coalition because it was essential to their ability to understand whether the clients represented by the MDL leadership already satisfied the 75% supermajority. In addition, the state opt-out coalition raised two other concerns concerning the allocation model and the methodology used to arrive at its calculations.³⁰⁴

On December 2, 2019, plaintiff’s negotiating class counsel Chris Seeger submitted a status report on the negotiation class notice. Notice was sent by direct mail to 34,000 negotiation class members and 10,000 more notices were sent by email. Only 3% of notices were deemed undeliverable. The commercial vendor Epiq set up a website that was visited by 15,000 visitors. As of November 27, 2019, more than 98% of class members remained in the class and 1.6% requested to opt out. Epiq would continue to receive opt out requests through December 6, 2019.³⁰⁵

The report contained a footnote allowing entities that had opted out to rescind their opt out request.³⁰⁶ On December 3, counsel for the State Coalition’s Opt-Out Working Group again wrote to plaintiffs’ class counsel objecting to the footnote allowing for rescission of opt-out requests, noting that they still had not received the identity of the litigating entities. They noted that having this information would put into context class counsels’ representation that 98% of class members remained in the class.³⁰⁷ On January 10, 2020, negotiating class counsel filed a request for entry of the negotiation class membership.³⁰⁸

C. The Appeal of the Negotiation Class Certification

Two weeks after Judge Polster certified the negotiation class, various Ohio cities³⁰⁹ and a coalition of manufacturers, distributors, retailers, and pharmacies³¹⁰ filed petitions to appeal the class certification order pursuant to Rule 23(f). The state AGs of twelve states and the District of Columbia filed an amicus brief in support of the request for interlocutory appeal of Judge Polster’s class certification order.³¹¹

The Rule 23(f) petitions argued that immediate review of Judge Polster’s certification order was warranted because it raised a novel and unsettled question of class litigation.³¹² In addition, the petitioners contended that the certification raised questions of the likelihood of the petitioner’s success and whether the district court may later revisit its certification ruling.³¹³

The Rule 23(f) petitions previewed the major arguments that the appellants would advance in their briefing to the Sixth Circuit. These arguments focused on five major overlapping contentions: that Rule 23 did not contemplate or authorize the certification of a negotiation class and contravened Article III jurisdictional limits,³¹⁴ that Judge Polster has misapplied the Rule 23 class certification requirements,³¹⁵ that the court’s certification of a negotiation class violated due process,³¹⁶ and that the certification called into question the constitutionality of Rule 23.³¹⁷ The state AGs focused on an additional argument against Judge Polster’s certification of the negotiation class; namely, that the certification undermined state sovereignty and the structure of state government.³¹⁸

The plaintiffs opposed the petitions for Rule 23(f) interlocutory review contending that the petitioners lacked standing because the district court’s certification order did not require any defendant to engage with the negotiation class.³¹⁹ The plaintiffs asserted that Judge Polster had not abused his discretion in certifying the negotiation class, and defended the certification against all the constitutional, Rule 23, and policy arguments the appellees advanced in their petition for review. On November 8, 2019, the Sixth Circuit granted interlocutory appeal.

1. The Defendant Appellants

On appeal to the Sixth Circuit, the coalition of corporate distributors and pharmacies focused on three core arguments in opposition to Judge Polster’s certification of the negotiation class, and requesting reversal:³²⁰ (1) that the district court’s certification of a negotiation class contravened Rule 23 and Article III of the Constitution, (2) that even if negotiation classes are permissible, Judge Polster’s certification decision should be reversed because the proposed class failed to satisfy Rule 23 certification requirements, and (3) the class notice failed to satisfy due process.

The corporate appellants led their appeal with their most sweeping arguments. First, they pointed to the Supreme Court’s warning to federal judges, in the 1990s, against judicial inventiveness in interpreting and applying Rule 23.³²¹ The Court’s clear instruction was that Rule 23 was to be strictly applied according to its terms and without the invocation of judicial inventiveness.³²² Echoing the same arguments that litigants advanced in the 1990s, the appellants contended that the plain text of Rule 23 did not authorize creation or certification of a negotiation class.³²³ Moreover, the fact that class action litigation had an equitable basis did not support a different conclusion.³²⁴

Furthermore, Judge Polster, in approving the Opiate negotiation class, had exceeded his Article III powers.³²⁵ Article III limited federal court jurisdiction to the resolution of actual, concrete cases and controversies and therefore Rule 23 permitted class certification only for purposes of enabling judicial action. The negotiation class was not certified in support of any judicial function.³²⁶ Nor was the “free-floating MDL” tethered to a specific civil action and the district court could not cure this defect by arbitrarily assigning the negotiation class to the Summit County case number.³²⁷

The corporate appellants further argued that established class action jurisdiction required Judge Polster to apply the rigorous analysis test to the class certification decision.³²⁸ The plaintiffs failed to submit evidence in support of their motion for certification, and in absence of such an evidentiary record Judge Polster could not and did not conduct the required rigorous analysis.³²⁹ The appellants contended that Judge Polster could not substitute his personal extensive knowledge of the litigation in absence of a record.

Judge Polster also erred in his conclusions that the proposed negotiation class satisfied the Rule 23(b)(3) requirements for predominance of common questions of law or fact,³³⁰ relying on the possibility of the Rule 23(c)(4) issue class model.³³¹ The appellants argued that the tens of thousands of political subdivisions and the multiplicity of asserted claims doomed satisfaction of the predominance requirement. They noted that Judge Polster had not certified separate issues for adjudication, but rather had certified the negotiation of potential cases.³³² In addition, the appellants asserted that Judge Polster could not manufacture predominance by looking at a gerrymandered subset of claims and issues, such as the RICO and CSA claims.³³³

The appellants additionally contended that Judge Polster violated due process in finding that the class representatives and class counsel met the Rule 23(a) adequacy requirement; instead, the class abounded with conflicts of interest among the thousands of counties and their constituent cities and towns. All these entities, the appellants argued, had differing priorities that impinged upon the negotiation settlement effort.³³⁴ Moreover, the class representatives were not required to prioritize the interests of the class in negotiating a settlement over and above their own litigation interests.³³⁵ The appellants pointed out that conflicts of interests existed across multiple dimensions of the litigation; for example, the negotiation class fixed settlement allocations at the county level only but allocations within counties were left to future negotiation of resolution by the court.³³⁶

Lastly, the appellants contended that Judge Polster’s certification of the negotiation class failed to meet due process standards in approving defective notice.³³⁷ The chief vehicle for proving notice was the website, which was not mandated by a court order or included in the record. In addition, the website and court-authorized notice failed to provide the class members with critical information necessary to assist in making an informed decision to remain in the class, or to opt-out.³³⁸ Moreover, the website’s content changed over time.³³⁹

2. The Amici

The Chamber of Commerce of the United States filed an amicus in support of the appellants.³⁴⁰ The Chamber indicated that as the organization representing approximately 300,000 business and organizations, it had a substantial interest in the litigation. The Chamber expressed its concern over class actions generally, which was “uniquely expensive and time-consuming forms of litigation.”³⁴¹ Broadly, the Chamber sounded the theme that courts repeatedly had counseled against judicial inventiveness and the Supreme Court had disavowed adventuresomeness in class action practice.³⁴² Echoing the appellants’ brief, the Chamber indicated that Rule 23 courts were to construe and apply Rule 23 strictly according to its terms. Rule 23 did not authorize creation of a negotiation class and it was “not the province of the judiciary to create new laws to solve societal problems—however dire and urgent.”³⁴³

The Chamber contended that certification of settlement classes constituted an adjudicatory function of courts that resulted in a final judgment. In contrast, a negotiation class was not adjudicatory in nature because it was not intended to facilitate adjudication of claims or entry of a final judgment. Congress contemplated that Rule 23 would be used at the end of the litigation process and not to “coerce parties to the bargaining table” or to “provide judicial oversight of negotiations.”³⁴⁴

As a policy matter, acceptance of the negotiation class would distort class action practice; the Chamber warned that if the Sixth Circuit approved the Opiate negotiation class, it would become a template for all future class actions and would encourage burdensome class actions that litigants might otherwise not pursue.³⁴⁵ Moreover, the negotiation class unfairly disfavored litigants who opposed the class and favored plaintiffs.³⁴⁶ And, as Judge Polster’s class certification illustrated, the negotiation class would become a vehicle to circumvent the stringent Rule 23 certification requirements.³⁴⁷ The Chamber also noted the dubious provenance of the negotiation class proposal derived from an unpublished draft law review article written by an appointed special master and law professor expert. ³⁴⁸

The Lawyers for Civil Justice also filed an amicus brief in support of the appellants.³⁴⁹ As a coalition of defense trial lawyer organizations, law firms, and corporations, the LJC had a history of advocating law reform of Rule 23 and class action practice. In asking for reversal of Judge Polster’s class certification order, the LJC contended that federal judicial power did not extend to authorize judicial efforts “to solve national social crises untethered to the exercise of jurisdiction over specific cases and controversies as governed by governing statutes, case law, and court rules.”³⁵⁰ Echoing the central arguments advanced by the appellants, the LJC asserted that Article III of the Constitution, Rule 23, and the multidistrict litigation statute did not empower courts to certify a negotiation class generally, or in the manner in which Judge Polster had accomplished.³⁵¹

A coalition of state entities that opted out of the negotiation class filed their own amicus brief requesting that Judge Polster’s class certification order be vacated.³⁵² In addition to the general argument that Judge Polster’s order contravened Rule 23, the opt out entities maintained that defects in the class notice left the opt outs with no other choice but to exit the negotiation class. The contended that the insufficient notice failed to provide them with sufficient details concerning the recommended allocations and failed to provide adequate information concerning the supermajority voting mechanism.³⁵³ In addition, they argued that the plaintiffs’ unilateral extension of the opt out period rendered the class fluid, so that it was uncertain who was in the class, or not.³⁵⁴

A coalition of state AGs also filed an amicus brief seeking reversal of Judge Polster’s negotiation class certification order.³⁵⁵ The state AGs raised issues of particular concern to the states; namely, that if the negotiation class succeeded in coercing a settlement from the defendants, this would deplete funds available to the states and frustrate their ability to secure meaningful statewide and national opiate relief.³⁵⁶ Broadly, the state AGs argued that Judge Polster’s order seized state power and ignored and overrode states’ internal governing structures.³⁵⁷ The court had seized power from the states to dictate rights and responsibilities of political subdivisions.³⁵⁸

The appellees only responded to the state AGs’ amicus brief. The appellees countered that the state sovereignty argument was not properly before the court because neither appellant had raised that issue. In any event, the appellees suggested that the state sovereignty argument was flawed and meritless.³⁵⁹ Pursuant to Judge Polster’s class certification order, the states remained free to resolve their own cases or to pursue relief to directly foreclose their local governments’ cases if the states believed they were entitled to control them. Moreover, under various state constitutional and statutory home rule provisions, states were likely to be overstating their sovereign interests.³⁶⁰

3. The Plaintiffs-Appellees

On March 30, 2019, the co-lead counsel for the negotiation class responded with a brief contesting all the appellants’ arguments and claims.³⁶¹ At the threshold, the appellees contested the Sixth Circuit’s appellate jurisdiction arguing that Rule 23(f) did not contemplate appellate review of non-final certification orders,³⁶² that the appellants had waived any challenges to Judge Polster’s certification order,³⁶³ and that the appellants lacked standing to appeal.³⁶⁴

The appellees cited Sixth Circuit precedent for the proposition that the court had recognized that “the aims of Rule 23 are advanced by innovations that ‘will achieve economies of time and expense.’”³⁶⁵ The appellees also invoked the proposition that courts had long used Rule 23 flexibly, and nothing in the Rule 23 text prohibited courts “from organizing a cohesive body as the first step towards possible creation of a settlement class.”³⁶⁶

Turning to their three central arguments, the appellees contended that the negotiation class comported with Rule 23,³⁶⁷ reminding that courts had recognized the settlement class concept for over two decades before the concept was finally endorsed by the Supreme Court in the late 1990s and adopted into Rule 23 as late as 2018.³⁶⁸ In addition, courts have substantial discretion in determining whether to certify a class and possess inherent powers over the management and supervision of cases on their dockets.³⁶⁹

The appellees further claimed that the class certification of a negation class did not present any Article III issues,³⁷⁰ suggesting that the Article III claim was “bizarre.”³⁷¹ They indicated that the plaintiffs and defendants involved in the Opiate litigation were adverse, that the district court was not being asked to answer a hypothetical question, that the class representatives had standing, and that thousands of cases in the MDL had live claims.³⁷²

The appellees asserted that the negotiation class more than adequately safeguarded class members’ interests.³⁷³ The structure of the negotiation class afforded class members to learn of settlement allocations in advance and the supermajority voting procedure assured approval of each subclass before submitting the final settlement for judicial approval.³⁷⁴ In addition, the certification order preserved class members’ ability to continue to litigate and even go to trial until there was a final settlement approval.³⁷⁵ Finally, the district court had not ruled out requiring a second opt out opportunity after the global settlement fund was determined.³⁷⁶

At the granular level, the appellees asserted that Judge Polster, in certifying the class, had performed the required rigorous analysis.³⁷⁷ Appellees deflected the “usual stew of conflicts, lack of proper notice, and assorted generic challenges” by contending that the class was composed of political subdivisions responsible for the health and safety of the American population.³⁷⁸ The appellees argued that the Rule 23 predominance requirement was satisfied, dismissing the appellants counterarguments as generic and boilerplate. The appellees found the appellants’ objection based on fifty states’ varying laws had nothing to do with the case, because Judge Polster had certified a Rule 23(b)(3) federal RICO claim, and two federal CSA claims under the Rule 23(c)(4) limited issues provision.³⁷⁹ The defendants had failed to contest the commonality finding with regard to the RICO claims, which “doomed” their arguments against predominance.³⁸⁰

The appellees further argued that Judge Polster had not abused his discretion in concluding that the Rule 23 adequacy requirements were satisfied.³⁸¹ They pointed out that mere hypothetical conflicts do not undermine a finding of adequacy.³⁸² In addition, there were no future claimants in the litigation to present the types of conflicts that the Supreme Court identified in its Amchem and Ortiz decisions.³⁸³ Finally, the appellees contended that the class notice comported with due process, suggesting that the defendants alone were challenging the notice as insufficient.³⁸⁴ On April 10, 2020, the appellants filed reply briefs to the appellees contentions.³⁸⁵

D. The Sixth Circuit Repudiation of the Negotiation Class

On September 24, 2020, the Sixth Circuit issued a divided decision, reversing Judge Polster’s certification of the negotiation class. Circuit Judge Eric Lee Clay authored the majority opinion.³⁸⁶ The court recited the abuse of discretion review standard but previewed a narrow textual approach that eschewed inventive uses of the class action rule.³⁸⁷ At the outset the court noted that the Supreme Court had instructed that “district courts do not have the liberty to invent a procedure with ‘no basis in the Rule’s text,’ even absent language expressly prohibiting it.”³⁸⁸

The Sixth Circuit’s majority opinion was notable not only for what it said but for the questions and challenges it evaded. Although the appellants and their amici had raised an array of issues on appeal, Judge Clay’s majority opinion rested solely and narrowly on a textual analysis of Rule 23 and the limits the rule places on courts’ abilities to fashion procedural relief for litigants. The court did not address the appellants’ Article III challenges or the states’ attorney generals’ federalism arguments. The court did not discuss due process concerns. The opinion did not discuss the appellants’ granular challenges to the Judge Polster’s misapplication of the Rule 23(a) and (b)(3) certification requirements. The court did not discuss the challenges to adequacy, conflicts of interest, and alleged deficiencies in the negotiation class notice. Finally, Judge Clay’s decision made only passing reference to the appellants’ challenge to predominance and superiority findings, and even this analysis was based on the court’s textual interpretation of Rule 23.³⁸⁹

1. The Rule 23 Textual Arguments

The centerpiece of the Sixth Circuit’s opinion was a textual analysis of Rule 23. The court’s analysis was anchored in the proposition that the Federal Rules of Civil Procedure are enacted pursuant to the Rules Enabling Act³⁹⁰ and as such are binding on the federal courts. Therefore, the court’s analysis necessarily was grounded in the text of Rule 23. The court invoked the canon of construction that when a rule’s language is plain then courts are required to enforce it according to its terms.³⁹¹ The Sixth Circuit concluded that the negotiation class was not authorized by the language, structure, or framework of Rule 23.³⁹²

The court noted that Rule 23 makes several references to litigation classes and settlement classes but makes no mention of a negotiation class. However, the court rejected the plaintiffs’ argument that even though Rule 23 does not mention the negotiation class that it does not foreclose a court from approving one. The court stated “what the plaintiffs fail to appreciate is that a new form of class action, wholly untethered from Rule 23, may not be employed by a court.”³⁹³

The court rejected the notion that the history of the settlement class supported current recognition of a negotiation class. Instead, the court pointed out that even though the settlement class was not codified in Rule 23 until 2018, a fair reading of Rule 23(e) prior to 2018 supported the concept of the settlement class. But, according to the court, the same could not be said for a textual support for a negotiation class. There was no comparative textual support for this concept. Also, because not all parties were compelled to participate in a negotiation class, this distinguished it from a settlement class which presented courts with a final settlement binding all.³⁹⁴

The court concluded that the negotiation class violated Rule 23 (and was unlike settlement classes) because a court could not make determinations about satisfaction of the Rule 23(a) and (b) requirements when there was no proposal to consider at the time the negotiation class was presented to a court for approval.³⁹⁵ Circuit Judge Clay noted that the negotiation class did not fit into the two recognized categories of litigation and settlement classes. The negotiation class, therefore, evaded the Rule 23 certification requirements, and especially frustrated the analysis required to fulfill the superiority requirement.³⁹⁶

Moreover, the court found no safe harbor for the negotiation class in the Rule 23 provisions for litigation classes, either. Judge Polster’s order permitting the negotiation class also indicated that it would not interfere with or displace any ongoing litigation. The court pointed out that Rule 23 permits aggregation and adjudication of common claims for trial, to avoid inconsistent judgments in individual proceedings. But the negotiation class Judge Polster certified allowed independent cases to continue in parallel to the negotiation class, that would not bring common claims to trial.³⁹⁷

The Sixth Circuit determined that the problems with the negotiation class were compounded by the plaintiffs’ efforts to establish a limited issue class, which Judge Polster endorsed in his certification of the RICO and CSA claims under Rule 23(c)(4). The Sixth Circuit concluded that Judge Polster bootstrapped his limited issue certification to satisfy the predominance requirement; the court noted that Judge Polster had “papered over” the predominance inquiry.³⁹⁸ The Sixth Circuit disagreed with Judge Polster’s predominance analysis, concluding that the court’s order minimized the myriad state law claims that potentially divided the class members.³⁹⁹ As a general matter, Rule 23’s structure did not permit courts to accomplish an end-run around the Rule 23(b)(3) predominance requirement by certifying a few common federal issues.⁴⁰⁰

2. Rulemaking Concerns

In the final analysis the Sixth Circuit opined that it could not understand why the usual options of a litigation or settlement class were not feasible in the Opiate MDL. The court concluded that however innovative, creative, and effective the addition of a negotiation class might be to the resolution of mass tort cases, the District Judge was not at liberty to grant relief amounting to an effective amendment of a Federal Rule of Civil Procedure outside the normal rulemaking process prescribed by Congress. This multi-layered rulemaking process involved proposed rule amendments that were vetted by the Advisory Committee on Civil Rules, recommended to the Judicial Conference, and approved by the Supreme Court for promulgation. Moreover, Congress always has the ability prevent a rule amendment through statutory enactment.⁴⁰¹

The Sixth Circuit noted that:

this multi-layered review process ensures that alterations to the Rules can only be made after thorough deliberations by multiple expert bodies, which can assess the virtues and drawbacks of a proposed change as well as evaluate the possible implications of the proposed rule across the entire judicial system, rather than by individual judges facing the pressure of litigation.⁴⁰²

The circuit court concluded that perhaps the Rules Advisory Committee and the Judicial Conference would, in the future, take under consideration revising Rule 23 to include a negotiation class, but until that time, the negotiation class “was beyond the Rule’s scope.”⁴⁰³

3. The Dissent

Circuit Judge Karen Nelson Moore dissented in an opinion almost twice the length of the majority opinion.⁴⁰⁴ She resoundingly endorsed the judicial power to change and invent when confronted with massive, byzantine multidistrict litigation; her opinion is a paean to judicial resourcefulness.⁴⁰⁵ More expansive than the majority’s opinion, Judge Moore grounded her dissent in five concepts: (1) the Rules’ equitable heritage; (2) Rule 23’s textual requirements; (3) settlement class history; (4) satisfaction of the Rule 23(a) and (b)(3) requirements; and (5) the lack of constitutional or policy impediments to the negotiation class.⁴⁰⁶

In setting forth her views, Judge Moore reiterated the same arguments that litigants and courts had advanced over the past fifty years in support of expansive approaches to dealing with complex aggregate litigation. In the struggle between aggregationists and judicial conservatives, Judge Moore aligned herself with robust judicial power and innovative managerial judging. She maintained that if a district court meticulously adhered to Rule 23(a) prerequisites and Rule 23(b) demands in certifying litigation, settlement, or negotiation classes, then “what’s in a name?”⁴⁰⁷

Judge Moore urged that the equitable heritage of the Federal Rules endowed the rules with flexibility that invited courts to apply the rules with “local imagination.”⁴⁰⁸ According to Circuit Judge Moore, courts should not apply canons of statutory construction to ensnare the interpretation and application of the FRCP. Rather, Circuit Judge Moore said that “courts should contemplate a liberal reading that fulfills the Rules’ broader design and that does justice for the parties.”⁴⁰⁹ The dissent cites examples where courts have expansively interpreted the theories underlying rule 23 to promote efficient litigation and to react to modern litigation trends.⁴¹⁰

Turning the Rule 23 textual arguments, Judge Moore contended ⎯ in opposition to the majority’s opinion and that of appellants ⎯ that the text of Rule 23 did not prohibit certification of a negotiation class. The majority was mistaken, she wrote, because class litigation was not cabined by the two rigid categories of litigation and settlement classes. She could not find any textual reference to “litigation class” or “settlement class” in the rules. Rather, as a matter of logic, negotiation was part and parcel of any settlement and therefore the settlement class concept legitimately embraced the negotiation class concept.⁴¹¹

The Opiate litigants presented competing historical interpretations of the settlement class concept. Judge Moore agreed with the plaintiffs-appellees’ narration, describing how the history of Rule 23 illustrated a trend towards judicial innovation in the face of emerging aggregate litigation problems, beginning with civil rights actions in the 1960s. Therefore, the history of the development and embrace of the settlement class further supported endorsement of the negotiation class. In the face of developing mass tort litigation, the settlement class could be traced back to the 1970s, even though Rule 23 had no provision for settlement classes. By the end of the 1990s, every federal appellate court and the Supreme Court declined to hold that settlement classes violated Rule 23. Echoing the appellee-plaintiffs’ version of history, Judge Moore agreed that over time the settlement class had become a stock device.⁴¹²

Judge Moore devoted the most expansive portion of her dissent to countering arguments that Judge Polster had improperly applied the Rule 23 class certification requirements in certifying the negotiation class. ⁴¹³ Point by point, Judge Moore concluded that the RICO and CSA claims were common to the class members and satisfied the Rule 23(b)(3) predominance requirement.⁴¹⁴ Engaging with the controversy over using the limited issue class to evade the predominance requirement, Judge Moore aligned with scholars and jurists who have concluded that certification of limited issues under Rule 23(c)(4) is thoroughly legitimate.⁴¹⁵

Similarly, Judge Moore determined that the Opiate negotiation class satisfied the superiority requirement because – taking a page from the Supreme Court’s Amchem settlement class – a court need not inquire whether the case, if tried, would present intractable management problems. Judge Moore opined that the majority had read too much into the district court’s decision to allow individual cases to proceed in tandem with the negotiation class.⁴¹⁶ Moreover, claimants had the ability to opt-out of the negotiation class.⁴¹⁷

Circuit Judge Moore agreed with District Judge Polster’s conclusions concerning adequacy of representation. She suggested that “no nefarious financial conflicts have erupted in the case yet,” and that “hypothetical” or “speculative” conflicts did not undermine a finding of adequacy.⁴¹⁸ Nor did Judge Moore take issue with the way in which the plaintiffs had proposed six subclasses, contending that the defendant-appellants had not offered an alternative way that the plaintiffs should have sub-divided the class.⁴¹⁹ Extensively canvassing the subclass arguments, she determined that the appellants had failed “to conjure up a cogent theory of how even one specific conflict of interest mandates subclasses . . . .”⁴²⁰

Turning to policy and constitutional grievances, Judge Moore rejected the appellants’ contention that the timeline for opting out of the negotiation class divested them of negotiation leverage as well as an escape route from an unfavorable settlement.⁴²¹ She suggested that the appellants had advanced an overly simplistic view of how class action operate that failed to take into account myriad protections in Rule 23 that granted “material clout” to all class members.⁴²² Moreover, Judge Moore noted that class members were protected by Judge Polster’s reservation of the right to order a second opt out post-negotiation creation of a settlement offer.⁴²³

IV. The Future of the Negotiation Class

A. A Scholarly Post-Mortem of Judge Polster’s Negotiation Class

The reaction to the Sixth Circuit repudiation of the negotiation class was relatively muted.⁴²⁴ After the Sixth Circuit decision and the final publication of the McGovern-Rubenstein article articulating the negotiation class, Professor Alan B. Morrison offered a balanced review of the negotiation class and its fate in the Opiate litigation.⁴²⁵ Morrison’s analysis focused chiefly on the advisability of the negotiation class rather than its legality.⁴²⁶ While recognizing various problems with the implementation of the negotiation class in the Opiate MDL, Morrison nonetheless concluded that it was a preferred, workable model because it solved two problems in aggregate dispute resolution. He also noted that while the appellants raised an array of objections, the Sixth Circuit’s majority opinion did not address most of them.⁴²⁷

Morrison first noted that in a negotiation class plaintiffs can agree to an allocation formula early in the litigation and before negotiation. Thus, solving the problem that arises where claimants are left voiceless (and powerless) in conventional settlement classes where class counsel determine award allocations after the court approves the settlement. To illustrate this point, Morrison compared the allocation process in the NFL Concussion litigation⁴²⁸⎯where Morrison argued the allocation process resulted in arbitrary distribution of settlement proceeds and an overall unfair settlement⎯with the pre-negotiation allocation process in the Opiate litigation.⁴²⁹ In the NFL Concussion litigation, a small group of class counsel resolved intraclass conflicts of interest by making post-settlement allocation decisions themselves.⁴³⁰ Morrison argued that had the NFL Concussion litigation been a negotiation class, the former players’ representatives would been had a meaningful part in the allocation process before negotiations with the defendant.⁴³¹

Second, by requiring an opt-out early in the proceedings and before negotiations begin, the negotiation class affords defendants with the knowledge of who is in and out of the class, enhancing the defendant’s goal of reaching a global settlement.⁴³² Defendants are more willing to bargain if the defendant knows the precise size and composition of the class.⁴³³ Morrison endorsed the Sixth Circuit’s conclusion that the defendants had standing to pursue an appeal of the class certification order because they had an interest in assuring that they would be required to pay a settlement only if the court properly certified the class.⁴³⁴

Morrison praised the negotiation class voting proposal coupled with district court settlement approval. Judicial approval of settlements already occurs in conventional settlement classes pursuant to Rule 23(e), so this part of the negotiation class model added nothing new to class action jurisprudence. The addition of a voting procedure would give voice to claimants and be advisory to courts, which might be influenced by a favorable vote, or not. Morrison asserted that there is no reason to believe that an affirmative vote by class members alone would result in ill-advised settlement approvals for negotiation classes.⁴³⁵ A class vote, Morrison contended, had no independent legal significance under Rule 23 or as a matter of due process and did not affect the settlement process. A court could still disapprove a settlement even if 100% of the class supported it.⁴³⁶

Morrison identified some problems with the implementation of the Opiate negotiation class that he believed could have been remedied if the Sixth Circuit had ordered a remand, rather than reversing the class certification. Addressing the problem that the Six Cities appellants raised regarding the postponement of how allocated monies would be distributed to cities, Morrison suggested that this issue “might have been easier to resolve” before class certification “and to do so more fairly, sooner rather than later.”⁴³⁷ He also endorsed the assertion that if an appellate court upheld certification of a negotiation class, then the court should exercise its authority under Rule 23(e)(4) and allow those who appealed a second chance to opt out, and any class member who opted out to opt back in.⁴³⁸

Morrison noted that the McGovern-Rubenstein proposal failed to indicate how class counsel and the representatives should proceed to achieve consensus on the allocation and voting procedures. Here Morrison generally recommended “significant outreach,” including state attorneys general at an early juncture in proceedings.⁴³⁹ He faulted the class notice in this regard and suggested that its FAQs were less than complete.⁴⁴⁰

Morrison also noted that whether the Opiate class satisfied the Rule 23(b)(3) predominance requirement was a close one, depending on alternative interpretations of the Amchem decision. He stated that the Sixth Circuit did not resolve this issue because it globally found that Rule 23 authorized negotiation classes. But Morrison observed that the Opiate majority opinion left the issue of predominance open, suggesting that this recurring predominance problem can only be solved by a Rule 23 amendment or by Supreme Court revisitation of this issue.⁴⁴¹

B. Bankruptcy Law as a Problematic Analog

In the Principles of the Law of Aggregate Litigation, the McGovern-Rubenstein article, and Morrison’s assessment of the negotiation class, the proponents all cited to bankruptcy law as providing an analog for the proposed voting procedures.⁴⁴² Although the negotiation class that Judge Polster certified called for a 75% supermajority vote of class claimants, the efficacy of the Opiate voting experiment was never tested because the litigation did not advance to a post-negotiation settlement after the Sixth Circuit reversed class certification.⁴⁴³ Thus, it is impossible to assess the fairness or value of the of voting procedures in the Opiate MDL in terms of its implementation. Consequently, we are left to reflect on the efficacy of the voting proposal’s design

Apart from cursory citations to the Bankruptcy Code, none of the voting procedure advocates discussed how effective voting procedures had been in mass tort bankruptcy proceedings.⁴⁴⁴ When first proposed by the ALI Reporters, the voting proposal elicited some skepticism concerning the usefulness of bankruptcy law as an analog for the voting procedures set forth in § 3.17.⁴⁴⁵ Moreover, the judicial system has had experience with resolving mass tort claims through bankruptcy proceedings, but not without some controversy concerning the feasibility of the bankruptcy procedures as an alternative means for resolving mass tort liabilities.⁴⁴⁶

A scholarly analysis of the use of bankruptcy laws to resolve asbestos mass tort litigation identified problems that emerged in the resolution of bankruptcy cases, most notably related to voting procedures.⁴⁴⁷ Canvassing four case studies of asbestos bankruptcies, one scholar identified problems of attorney dominance and self-dealing, concealment of critical information from claimants, authority to file and vote on behalf of asbestos victims, claims filing and support, and the exclusion of dissenting voices.⁴⁴⁸ These problems in asbestos bankruptcies have relevance for the voting procedures in the negotiation class model. Indeed, some of these problems emerged prior to Judge Polster’s certification of the negotiation class. A relatively small group of plaintiffs’ attorneys dominated the pre-certification efforts, their self-interest resulted in aggressive advocacy for certification of the negotiation class as against any dissenting views, some class members complained of insufficient or incomprehensible information concerning the allocation methods in the class action notice, and others complained of the exclusion of their dissenting voices.

Apart from implementation problems in the voting procedure mechanism, none of its advocates addressed the more fundamental issue concerning judicial authority to approve such a device through a Rule 23 certification of a negotiation class. Discussing reliance on bankruptcy law to support the validity of voting procedures in a negotiation class, Morrison agreed that bankruptcy proceedings might reasonably be analogized to class action proceedings. However, he noted that the Bankruptcy Code contains express, detailed provisions concerning voting procedures in Chapter 11 bankruptcy proceedings,⁴⁴⁹ and that Congress enacted the detailed provisions setting forth the bankruptcy voting procedures, “not by the plaintiffs in a particular negotiation class.”⁴⁵⁰ Thus, if voting procedures are to become a part of the settlement approval process and included in an amended Rule 23, this should be accomplished by the rulemaking process, legislation, or the Supreme Court.⁴⁵¹

C. The Uncertain Future of the Negotiation Class: Appraising the Difference Between Implementation Problems Versus Design Problems

Morrison’s post-mortem of the Sixth Circuit’s decision presents an optimistic view of the negotiation class that focuses on the beneficial and positive virtues of the model. Rather than a problem of flawed design, Morrison identified very few implementation problems. Moreover, he impliedly suggested that implementation problems may be cured in future attempts at assembling negotiation classes. While Morrison eschewed extensive discussion of the legal basis for the negotiation class, it is clear he agreed with Judge Moore and the plaintiffs-appellees who advanced a flexible interpretation of Rule 23 to embrace the negotiation class. If the Opiate negotiation class failed because of poor implementation, then there remains hope that the model is not dead.⁴⁵²

It may well be that the failure of the Opiate negotiation class was largely a function of flawed implementation. In their enthusiasm for introducing a novel approach to solving the problem of mass tort litigation generally, its advocates may have engaged in intellectual hubris and overreach. In the final analysis, the Opiate MDL most likely was a very poor vehicle to road test the negotiation class.⁴⁵³ It was too sprawling in scope, it embraced too many divergent claims and competing interests, it was ensnared by complex federalism issues, it looked the other way at problematic applicable law concerns, and it got bogged down in demographic and geographic minutiae that resulted in an overly complex and incomprehensible allocation system. As Circuit Judge Clay pointed out, the negotiation class advocates somewhat cavalierly papered over several class certification requirements and issues. However, if a group of highly sophisticated attorneys, an unusually large number of special masters, a court appointed professorial expert, and a seasoned complex litigation judge could not marshal an acceptable negotiation class, what does this bode for future attempts at advancing another negotiation class?

Nonetheless, future attorneys may avoid implementation problems and the Opiate experience will inform their efforts. A more serious and open question concerns the legality or legitimacy of the negotiation class model itself. The Sixth Circuit’s majority decision focused less on implementation problems but centered instead on the legitimacy issue, concluding that a narrow textual reading of Rule 23 did not authorize a negotiation class. Therefore, Judge Polster exceeded his authority in approving it. But the Sixth Circuit’s majority opinion may not be the last word on the fate of the negotiation class. It is well to remember that if one additional aggregationist judge had sat on the panel, the negotiation class might very well have been upheld with Judge Moore’s dissenting opinion providing the majority view.⁴⁵⁴

The future of the negotiation class may unfold in at least three ways. First, plaintiffs’ attorneys may heed the Sixth Circuit’s repudiation of the negotiation class and abandon efforts to create a new negotiation class in some other mass tort MDL. However, if the history of mass tort litigation spanning five decades teaches anything, it is that plaintiffs’ attorneys do not give up easily on novel ideas and will regroup and return with previously repudiated concepts. Second, a different district judge might approve a negotiation class and combined with an aggregationist-minded appellate court, uphold the model essentially adopting Judge Moore’s dissenting views. As the plaintiffs-appellee-plaintiffs, Judge Moore, and Morrison agreed, the history of the judicial embrace of the settlement class provides this precedent.

Third, the Advisory Committee on Civil Rules might decide to put a negotiation class proposal on its agenda for Rule 23 amendment.⁴⁵⁵ Or, the negotiation class advocates could pursue Congressional approval via legislation. In either instance it is difficult to forecast the fate of the negotiation class because both these processes are fraught with competing interests that inform the rulemaking and legislative processes. And the rulemaking and legislative processes are notoriously glacial. Notwithstanding all these obstacles, good betting money would wager that we have not yet seen the last of the negotiation class.

D. The Ongoing Aggregation Debate and the
Limits of Judicial Process: A Reprise

A final but important note on appreciating the negotiation class in historical context. The failure of the negotiation class is but the latest chapter in a fifty-year struggle in federal and state courts to come to grips with how best to resolve mass tort and other complex litigation. This struggle embodies a very fundamental philosophical disagreement about the role of courts and judges, pitting concepts of litigant autonomy against notions aggregate justice. It is a struggle that questions the role of the judiciary in crisis situations where existing rules and procedures fail to provide fair and expeditious relief, and the Supreme Court and Congress do nothing to provide effective means for remedial justice.

The history of fifty years of mass tort litigation illustrates an almost decade-by-decade shift in federal judicial thinking about solutions to the problem of mass tort litigation. Beginning with the emergence of the seminal mass tort cases in the 1970s, most federal courts for the ensuing decade declined to certify mass tort class action based on restrictive textual reading of Rule 23, reliance on the 1966 Advisory Committee Note indicating that the Rule 23(b)(3) action was not suitable for mass accident cases, and policy reasons concluding that class procedures were not superior to other means for resolving tort actions.⁴⁵⁶ In this decade, the courts sided with notions of litigant control and autonomy over their individual claims.

But by the mid-1980s, considering the burgeoning mass tort crisis on federal court dockets, federal courts adopted a crisis mentality, reversed course, and embraced innovative use of the class action to resolve mass tort litigation. The courts welcomed aggregative techniques and, between 1986 and 1996, aggregationist attorneys, judges, and scholars grew more vocal. In this decade courts endorsed liberal textual interpretations of Rule 23 with frequent reference to the equity basis of the federal rules; courts experimented with novel uses of class action procedure.⁴⁵⁷ No statement typified the prevailing attitude of this decade more than the Fifth Circuit’s pronouncement in 1986 that “[n]ecessity moves us to change and invent.”⁴⁵⁸ For a decade the federal judiciary shifted away from a preference for litigant autonomy towards embracing the benefits of aggregate litigation.

After a decade of judicial experimentation with innovative mass tort procedures and the creation of the settlement class, from 1995–1996 judicial reaction signaled a retreat from the aggregationist expansions of Rule 23 in the prior decade.⁴⁵⁹ The same Fifth Circuit that had championed the notion that necessity moved the courts to change and invent, now rejected the notion that a move away from the one-on-one traditional model of litigation was little more than a move to modernity. On the contrary, the court noted that such traditional ways of proceeding reflected “far more than habit. They reflected the very culture of the jury trial and the case and controversy requirement of Article III.”⁴⁶⁰ The Fifth and Seventh Circuits led the way in repudiating nationwide mass tort class certifications, Rule 23(c)(4) limited issue class workarounds, and the notion that class actions were a superior means to resolve these large-scale litigations.⁴⁶¹ The anti-aggregationists had prevailed again.

The debate over the settlement class spanned the entire decade of the 1990s and this debate offered competing interpretations of Rule 23 that continued for decades. The Opiate negotiation class revived the very same debate that litigants exhaustively argued in the 1990s. The Supreme Court endorsed the settlement class at the end of the decade in its Amchem and Ortiz decisions, but the Court also set forth limiting principles in accomplishing mass tort class litigation.⁴⁶² Although the aggregationists gained ground with the Court’s recognition of the settlement class, this victory was cabined by the accompanying restrictive due process requirements. Perhaps more important, the Court in Amchem and Ortiz decision counselled against further adventurous uses of the Rule 23.

With the return of class litigation to the federal courts in the 2005 post-CAFA era, dedicated aggregationists turned their efforts to seeking reform of restrictive class action jurisprudence that had emerged in the 1990s. The advent of the twenty-first century marked a shift of large-scale litigation to MDL forums, and the emergence of non-class aggregate settlements ⎯ yet another novel development on the mass tort landscape. Between 2004 and 2010, aggregationists seized the opportunity through the auspices of the American Law Institute to rewrite and undo almost all the restrictive class action principles federal courts articulated in the 1990s. At the same time, the ALI Reporters and Advisers sought to liberalize MDL non-class aggregate settlements with novel rules. The resulting Principles of the Law of Aggregation was a monument to the aggregationist movement that was nascent in the early 1980s. It was followed, in 2017, by the McGovern-Rubenstein negotiation class proposal, building off the ALI Principles.

Viewed in historical context, then, the litigation over the Opiate negotiation class was a part of the continuing jurisprudential debate between aggregationists on the one hand, and litigation traditionalists on the other. Hardly any of the arguments advanced in the Opiate litigation were new: all had been presaged in earlier decades in the same fights over innovative expansion of the class action and non-class action devices. Even the judicial decisions parsing the text of Rule 23 and the policies implicated in the problem of mass tort litigation were not fresh. In the end, Judge Polster and Judge Moore aligned with the aggregationists’ well-developed views of the world, while the Sixth Circuit majority in its Opiate opinion reverted to traditional views of litigant autonomy coupled with limited judicial power. In this round of the mass tort litigation struggle, the Court’s injunction to federal judges to cease adventurous use of Rule 23 prevailed. But if five decades of mass tort litigation teaches anything, it is that the short unhappy life of the negotiation class is probably not definitive.

Conclusion

History will best assess whether the negotiation class was fatally flawed in design or implementation, or both. Certainly, the rapid rise and demise of the negotiation class in two short years was congruent with the Court’s admonition to federal judges, at the end of the twentieth century, to cease adventurous use of the class action rule. Hence, two decades after these warnings in Amchem and Ortiz, the Sixth Circuit disavowed the introduction of yet another novel adaptation of the class action rule. What is interesting about the negotiation class proposal was the great effort its authors expended on contextualizing the model within the contours of existing class action jurisprudence, emphasizing the due process protections afforded by their proposal. Indeed, the proponents went to great lengths to explain that the negotiation class was not a departure from class action jurisprudence, but rather adhered more closely to the requirements of Rule 23 and constitutional due process requirements, than settlement classes. The Sixth Circuit ultimately disagreed.

Apart from the technical failure of the negotiation class in the Opiate MDL, the introduction of the proposal and Judge Polster’s willing embrace of it raise other legitimacy questions. Does our legal system contemplate the unparalleled influence and power of two law professors and a special master with unfettered access to a judicial officer supervising a litigation, to effectively rewrite existing law and then lobby for its implementation by the parties and the judge? What does democratic process mean in class or other aggregate litigation? What place do democratic principles have in judicial proceedings, at any rate? Do concepts of civil justice entail and embrace principles of democratic governance?

The negotiation class proponents sought to invest their negotiation class concept with an aura of democratic theory and decisionmaking. Class members were to have a place at the negotiation table and enhanced voice in the resolution of their cases. Class members were to be enfranchised. Class members were to benefit from agreeing in advance to a process and not necessarily a result. Despite all these representations, the promised democratization of the settlement process did not materialize in the Opiate MDL. In reality, the promises of the negotiation class remained a gloss on what in practice very much resembled the old way of settling class litigation.

Moreover, with the onset of the opiate crisis, actors enmeshed in the burgeoning litigation may have become convinced that this litigation landscape was too big to fail. In other words, that the litigation was so large and interconnected that the failure to find a global, expeditious resolution would have catastrophic consequences for public health. Counsel for the negotiation class had argued to the Sixth Circuit that the negotiation class was triggered by the unprecedented gravity of the opiate crisis. Thus, invested with a crisis mentality and a no small measure of hubris, a cohort of aggregationist attorneys, academicians, and a sympathetic MDL judge determined to save the entire judicial and national public health systems through imposing a novel class action solution. But in so doing, the negotiation class proponents failed to accept that if the litigation landscape was too large and complex, perhaps it deserved to fail and be broken up.

As Professors McGovern, Rubenstein, and others correctly pointed out, courts rejected the settlement class concept for several years until judges finally embraced it and settlement classes eventually became a stock device in the class action toolbox. Whether the negotiation class gains judicial traction in the future and becomes another stock device remains to be seen. Moreover, it remains to be seen whether the Sixth Circuit’s repudiation of the negotiation class has implications for utilization of the ALI § 3.17 proposal for the resolution of non-class aggregate settlements. Class counsel for the negotiation class sought to quell policy concerns by arguing that although the negotiation class was a crucial innovation to provide an optional mechanism for resolving the national opiate crisis, it was unlikely to be considered in the vast majority of class actions. But that was true for the then-novel settlement class. Moreover, if the Opiate negotiation class failed to pass judicial scrutiny under the stringent Rule 23 requirements, it is perhaps questionable whether the novel consent and voting procedures might prove more problematic for federal judges in non-class aggregate setting, or not.

The failure of the Opiate negotiation class recalls the biblical parable concerning the problem with pouring new wine into old bottles.⁴⁶³ In formulating and implementing the negotiation class, its proponents were trying to put the new wine of the negotiation class into the old bottle of Rule 23. Although conventional jurisprudence had come to embrace the settlement class, in the Opiate litigation the Sixth Circuit concluded that the old Rule 23 bottle could not contain the new negotiation class wine. As the parable implies, for this to work, the negotiation class needs a new Rule 23.