The Responsibilities of Lead Lawyers and Judges in Multi-District Litigations

Abstract:     
Recent developments in multi-district litigations (MDLs) raise interesting and important questions about the responsibilities of lead attorneys and judges. Increasingly, lead attorneys use their control of settlement negotiations to enrich themselves. In a prior article co-authored with Professor Geoffrey P. Miller, I argued that this conduct violates lead lawyers’ duties. But judges approve and encourage this behavior instead of reining it in.

Judge Eldon E. Fallon, who presides over the massive Vioxx MDL, found my critique of the lead lawyers’ conduct in that MDL unconvincing. In an order on common benefit fees and costs, he explained why, in his view, the self-enriching actions of the lead attorneys were appropriate. He also criticized the proposal Professor Miller and I set out for selecting and compensating lead lawyers in MDLs. When doing so, he relied on a draft study by Carolyn Dubay, formerly a researcher at the Federal Judicial Center (FJC), who also found our proposal wanting.

In this Article, I describe Fallon’s and Dubay’s criticisms and respond to them. The analysis builds on my work with Professor Miller and also on the article in this issue I co-authored with Professor Lynn Baker. I encourage readers to become familiar with those writings before tackling this one.

Number of Pages in PDF File: 19

Accepted Paper Series