On September 11, 2019, Judge Dan Polster—the District Court Judge presiding over the In re National Prescription Opiate Litigation MDL in Ohio— approved a novel and untested class construct under Rule 23: a “negotiation class certification.” As the court described it, this “innovative solution” attempts to remedy common impediments that prevent negotiated global resolutions in high-stakes class actions by conducting the class certification and opt-out process before the settlement is reached in hopes of giving defendants full visibility of class size and potential additional exposure going into negotiations. While the court’s certification of the novel “negotiation class” in this case is currently on appeal before the Sixth Circuit, parties may still glean lessons from this case for future class action litigation.
The Opioid MDL Litigation and Negotiation Class Certification -
The Opioid MDL encompasses over 2,000 individual actions brought by state and local governments against numerous pharmaceutical manufacturers, distributors, and pharmacies. See Mem. Op. Certifying Negotiation Class at 1, In re Nat’l Prescription Opiate Litig., (No. 1:17-MD-2804) (N.D. Ohio Sept. 11, 2019), ECF No. 2590. The plaintiffs in the Opioid MDL seek recovery of funds expended in addressing the opioid epidemic across the United States, principally through claims asserting violations of the Racketeer Influenced and Corrupt Organizations (“RICO”) Act and the Controlled Substances Act. Id. at 2, 14. There are thousands of additional cases pending in state courts throughout the United States in which municipalities seek similar relief against defendants. Id. at 2.
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