The Myth of Settlement in MDL Proceedings

Abstract

Many of the claims in multidistrict litigation proceedings are eliminated—not based on any ruling on a dispositive motion—but through informal means because the claims are meritless on their face. Indeed, claims are frequently eliminated because plaintiffs’ counsel agree to voluntarily dismiss them where the claims are facially meritless. Similarly, plaintiffs may simply fail to produce basic evidence to support the claims. Thus, there is a—frequently unnoticed—way in which claims are weeded from MDL proceedings, even where settlement is ultimately reached, undermining the narrative that multidistrict litigation is simply about reaching a global settlement. This article discusses a variety of procedures that have been used to informally eliminate claims in MDL proceedings and the implications of those procedures.

Keywords: civil procedure, multidistrict litigation, MDL, mass torts