In late June, thirty-nine cities and counties advancing claims in the opioid multidistrict litigation moved to certify a “negotiating class” solely for the purpose of reaching a settlement.

• The opioid multidistrict litigation is not a class action. Instead, it consists of nearly 2,000 similar lawsuits, mostly brought by state and local governments seeking reimbursement for the public expenses that prescription opioid manufacturers and distributors allegedly caused them to incur in responding to and treating the opioid crisis.
• Because of the unique nature of the public nuisance claims brought by the government plaintiffs, each lawsuit presents unique factual and legal issues, making it difficult for a court to certify a class.
• In an effort to negotiate a comprehensive settlement while avoiding Rule 23’s requirements of commonality and predominance—especially with respect to issues related to causation and damages—several plaintiffs seek to certify a class consisting “of all United States Cities and Counties . . . for the sole purpose of negotiating and potentially settling with defendants conducting nationwide opioids manufacturing, sales or distribution.”
• The movants explained that they seek to obtain a better settlement through coordinated negotiation so that they can more efficiently “generate funds and establish programs to help abate the opioids epidemic.”
• The movants proposed that, once a settlement is reached, the class would distribute the settlement funds to class members based on several factors, including the number of total overdose deaths in each locality. If the class fails to reach an agreement, the parties would seek the appointment of a special master who would allocate the funds.
• If accepted by the court, the novel prospect of certifying a “negotiating class”—by which the court overlooks complicated questions of causation and liability among dozens of differently-situated parties—could have a significant effect on mass-tort litigation.
• Oral argument is set for early August.

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